(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "If Hamilton were here today; American fundamentals applied to modern problems .."

O MC y 

ii ii iiiii mi 

3 1 404 0068 1 0449 









Digitized by the Internet Archive 

in 2012 with funding from 
Brigham Young University-Idaho 



http://archive.org/details/ifhamiltonwereheOOvand 



TO Tin 

ALEXANDER Hamilton [NSTITDTB 

i >i \i /. You Cm 

through which the most illu I 
km in American Hist ry in 

the pur nit of pr . 
kno 

This Voi imi; is I )i.i>u \n D 



If 

Hamilton 
Were Here Today 

American fundamentals 
\pplied to Modern Problem 



I .nk unto the r 
whence >e «re hew n " 



Bi 



Arthur Hciulrick Yandenberg 

Author 
"The (>reate«t \menc«n, -VlennJer Hamilton" 



IllustrjfcJ 



G.P.Putnam's Sons 

Ts^ewYork (3 London 

dljc Knickerbocker Preii 
1923 







Made in the i of America 



> 



By A. H. Vandenberg 



The Greatest American: Alexander Hamilton 
If Hamilton Were Here To-day 




JACOLES BEICH 



(^^^^^^^^^^^^^ 



jforetoorb 

" Look unto the rock whence ye are hewn, and to the hole 
of the pit whence ye are digged. " — Isaiah 151, 1 . 

"It is impossible for the man of pious reflection not to 
perceive in the Constitution, a finger of that Almighty hand 
which has been so frequently and so signally extended to 
our relief in the critical stages of the Revolution." — The 
Federalist, No. 37. 

Alexander Hamilton was the master crafts- 
man of American Government. He crowded into 
one short life more dynamic service to the American 
foundation than any other patriot who ever lived. 
He was the inspired oracle of the Constitution. 
His lucid exposition of its purposes, his matchless 
interpretation of its spirit, his implacable deter- 
mination to save it — and, through it, to save a 
stumbling people from the tragedy of disintegration 
— were the dominant factors in the creation of the 
Republic. He clearly saw that ordered freedom 
required protectorate. He first convinced his 
countrymen that the Constitution established this 
dispensation upon secure foundations, solid as the 



vi Jforetoorb 

eternal hills; and then he proceeded to bulwark 
these foundations with all the resource and all the 
genius of his apostolic might. 

More than a century has intervened. The un- 
fledged Nation which he tended with paternal love 
and unselfishness, has grown to powerful stature 
with the years. The same old Constitution has 
served it in all the vicissitudes of time. The same 
old foundations have held constant and dependable 
for succeeding generations of Americans. But the 
ties of fidelity to these basic birth-rights have been 
seriously weakening, appreciative comprehension 
of their unbroken values has been dulled, as modern 
citizenship — much of it alien in blood — has found 
a constantly widening chasm between the im- 
patient present and the monitory past. One great 
National organization has made the recent state- 
ment — as shocking as it probably is true — that 
11 if it could be submitted to a ballot, a large number 
of our citizens would vote in favor of abolishing 
the Constitution entirely.' ' ■ A Declaration of War 
against us by a powerful, foreign foe could not 

1 The report of the American Bar Association's Com- 
mittee on American Ideals, San Francisco Convention, 
1922. The Federalist, No. 17, warned: "It is a known fact 
in human nature, that its affections are commonly weak 
in proportion to the distance or diffusiveness of the ob- 
ject." 



jforetoorb vii 

threaten fate that would be half so dire as the 
possibilities wrapped in this dark prophecy. 

Ordered freedom still requires protection. We 
have outgrown primitive inconveniences; but we 
have not outlived fundamental necessities. The 
immutable foundations of the Constitution are, if 
anything, more essential to the complex relations 
of one hundred million people than they were for 
the comparatively simple needs of three million 
people in the days when America was young. If 
the rally cry of yesterday was " Forward to the 
Constitution* ' — how the Nation rang with this 
progressive apostrophe forever on the lips of 
Hamilton! — to-day's shibboleth should be "Back 
unto the Rock whence ye are hewn" ! The wisdom 
of the Founders, like truth, is constant through all 
time. If Hamilton was indispensable in 1787 to 
lead Reason to her democratic throne, he is im- 
pressively required in 1923 to maintain her scepter 
against the heresies of a radical and thoughtless 
age which boasts an independence, as dangerous as 
it is blind, of precedent and tradition and ex- 
perience. Even the most restless among the 
votaries of Constitutional destruction should be 
glad to pause with such an honored counselor, 
to whom every honest American must acknowledge 
himself in eternal debt. Having paused — and 



viii Jforetoorb 

listened — " happy will it be if our choice should be 
directed by a judicious estimate of our true in- 
terests, unperplexed and unbiased by considera- 
tions not connected with the public good." 1 
Wherefore, this book shall hazard to inquire what 
Hamilton if he were here to-day would say — and 
do — in relation to the letter and the spirit of the 
Constitution. 

But, it will be immediately interposed, who 
knows what Hamilton would say and do, if a 
blessed miracle could restore his wisdom, his pre- 
science and courage to the modern guidance of 
America? By what right shall any unordained ex- 
positor assume to commit him in the disagreements 
which divide and aggravate the minds of men to- 
day ? The question should be asked — and answered. 

It would be unpalliated presumption for any 
living interpreter — a century removed from per- 
sonal contacts with George Washington's co- 
worker in the emancipation and the organization 
of America — to subscribe Hamilton's endorsement 
to any proposition not clearly approved by the 
detailed doctrines wrought in his own time. It 
would be a particularly vicious trespass upon a great 

1 This verbatim sentence in The Federalist, No. I, was 
among the first admonitions addressed to the citizens of 
long ago. 



Jforetoorb ix 

memory, to accredit partisanship to him in any 
of the casual problems, essentially our own, which 
bear no direct kinship to fundamentals that are 
the same in every age. But it is no speculation to 
speak for Hamilton in relation to the menaced 
spirit of the Constitution. It is no presumption 
to place him, once more, at the summit of the 
Republic's defenses, repelling those who would 
trade the checks and balances and guaranties of a 
Representative Government for the shifting and 
reckless uncertainties of a pure democracy. It is 
no trespass to bring him into renascent challenge 
to those restive forces, in this uncertain period of 
flux, which would substitute repudiated political 
experiments for the established modes that wisdom 
recommended and experience has vindicated. It is 
no transgression to idealize him in the thick of un- 
remitting battle against all modern Constitutional 
treacheries and delinquencies. On the contrary, 
he would consider that he lived and died in vain and 
that his poor memory was shorn of its last, sym- 
pathetic friend, if any Constitutional crisis, great 
or small, ever shall arise in the story of the United 
States, in which it should be undenied that he could 
ever countenance, by the timidity of silence, so 
much as a single gesture against the Constitutional 
Rock whence we are hewn. 



x Jforetoorfc 

What Hamilton would say and do, in these 
iespects, stands forth as indubitably clear as noon- 
day sun in cloudless sky. He lived a philosophy of 
Constitutional fidelity which permits of no mis- 
understanding. He created a Constitutional litera- 
ture which none but charlatans could misconstrue. 
He believed in the genius of American Government, 
as founded by himself and his compatriots, with a 
reasoning passion which never compromised with 
adventurers or demagogues. He gave his great 
brain and heart and soul to the consolidation of 
these ideals, with a selflessness and probity that 
have few parallels. He would be as constant to- 
day as he was yesterday. Nothing could be surer 
than the character of his modern counsels; and 
nothing could serve healthier utility than to have 
these counsels honestly appraised, by modern 
Americans, all too many of whom have forgotten — 
sad to confess — that such an heroic fore-bear ever 
served supreme emergency. 

But credentials for these observations and these 
warnings may be even more closely verified. The 
complete scope of Hamilton's Constitutional beliefs 
was unequivocally set down in the famous 
Federalist Papers — the embattled essays which 
drove recalcitrant New York State into the Con- 
stitutional fold, at the end of an historic conflict, 



Jforetoorb xi 

against superhuman odds, in which Hamilton's 
incorrigible tenacity was all that saved The Great 
Experiment from death a-borning. The entire, 
correct theory and design of American Constitu- 
tional Government is set down in these great 
Papers, under seal of Hamilton's creeds. Nothing 
need be taken for granted or left to the imagination. 
Here is everything, in luminous particularity. So, 
to avoid divertive arguments which might ques- 
tion an interpreter's authority in weasel effort to 
blunt the force of his conclusions, not otherwise to 
be attacked, we substantially confine our gospels 
to paragraphs and phrases taken from The Federal- 
ist, as set down by the author in his own burning 
words. Some two hundred separate and distinct 
applications of verbatim Federalist philosophies 
thus are made. The modern condition, brought to 
answer to Federalist rule, may be different in its 
aspect; but in principle it is the same, and, upon 
these principles, The Federalist Papers speak for 
their own author who made them the mirror of 
his faith. In such circumstance, what Hamil- 
ton would say and do, if he were here to-day, 
becomes as sure as truth — and as vital to the 
perpetuity of our ordered liberties as he was, 
in his own time, to the establishment of our in- 
heritance. 



xii Jforetoorb 

As The Federalist 1 declared in the beginning, so 
we may well repeat to-day: "The subject speaks 
its own importance; comprehending in its conse- 
quences nothing less than the existence of the 
Union, the safety and the welfare of the parts of 
which it is composed, the fate of an empire in many 
respects the most interesting in the world." What 
it lacks in the flash of easy reading, it makes up in 
the stern import of the faithful citizen's obligation 
to his country. "If the road over which you will 
have to pass should in some places appear to you 
tedious or irksome, you will recollect that you are 
in quest of information on a subject the most 
momentous which can engage the attention of a 
free people, that the field through which you have 
to travel is in itself spacious, and that the difficul- 
ties of the journey have been unnecessarily in- 
creased by the mazes with which sophistry has 
beset the way." 2 Hamilton would not be approved 
to-day, by intemperate faction which snarls at the 
restraints differentiating between liberty and 
license. No more can this reflection of his stalwart 
faiths anticipate applause in forums that ring to the 
doctrines of communistic change. The Federalist, 
Down-to-date, like its illustrious predecessor, 

I No. i. 

2 The Federalist, No. 15. 



Jforetoorb xiii 

"solicits the attention of those only who add to a 
sincere zeal for the happiness of their country, a 
temper favorable to a just estimate of the means of 
promoting it." 1 If such as these ever fail to num- 
ber an American majority, the fruits of liberty will 
turn to ashes on our lips. We shall have sacrificed 
the benefit of grace bestowed by the final prayers of 
Washington who proclaimed he " carried to his 
grave" unceasing vows that "Heaven may con- 
tinue to you the choicest tokens of its beneficence 
. . . and that the free Constitution, which is 
the work of your hands, may be sacredly main- 
tained." 2 

We are warned by our own authorities — by both 
Hamilton and The Federalist — to avoid intemper- 
ance in assessing motives to those with whom we 
Constitutionally disagree. With a fine spirit of 
American fair-play, neither understood nor emu- 
lated by the adversaries with whom he fought, 
Hamilton urged that it would be disingenuous to 
resolve indiscriminately against the purposes of an 
opposition. "Candour will oblige us to admit that 
even such men may be actuated by upright inten- 
tions; and it cannot be doubted that much of the 
opposition which has made its appearance, will 

1 The Federalist, No. 37. 

2 Farewell Address. 



xiv Jforetoorb 

spring from sources, blameless at least, if not 
respectable — the honest errors of minds led astray 
by preconceived j ealousies and fears . So numerous , 
indeed, and so powerful are the causes which serve 
to give a false bias to the judgment, that we, upon 
many occasions, see wise and good men on the 
wrong as well as on the right side of questions of 
the first magnitude to society. This circumstance, 
if duly attended to, would furnish a lesson of 
moderation to those who are ever so much per- 
suaded of their being in the right in any contro- 
versy. And a further reason for caution in this 
respect might be drawn from the reflection that we 
are not always sure that those who advocate the 
truth are influenced by purer principles than their 
antagonists/' 1 All these homilies, of course, are 
true; and those who risk the responsibility of 
bringing The Federalist Down-to-date, must be 
prepared to exercise similar, generous constraints. 
But some conspiracies against the Constitution 
are so obviously born of tainted purposes, that 
occasional recurrence to strong language is inevit- 
able. So long as it be the exception rather than the 
rule, it will be justified by precedent — because even 
The Federalist, with all its charity, did not repress 
an occasional blast of anathema against the 
1 The Federalist, No. i. 



Jforetoorb xv 

1 ' ravings ' ' of those persons who imagine that ' ' their 
art or their eloquence can impose conceits and 
absurdities upon the people of America for infallible 
truths." 1 

It is unfortunately true that those who " despise 
and condemn the Constitution have in the past ten 
years had more earnest students of their vicious 
doctrines than those who uphold the Constitution 
and prize their liberties which the Constitution 
guards and protects. " 2 It has become quite the 
supercilious and disrespectful mode to spurn the 
Constitution as nothing more than "the political 
wisdom of dead America. " 3 As if the laws of 
gravity were defunct because Newton is physically 
past and gone ! Threat after threat to the genius of 
the Constitution is disclosed in contemporary 
deflections, submitted to analysis and answer upon 
subsequent pages. It is a familiar error to mistake 
all change for progress. But a majority of the 
American people — once aroused to the verities, and 
reminded of their vitality — will not yield to these 
subtle lures. "No reliance upon the National 
character has ever been betrayed/ ' Vice-President 

1 The Federalist, No. 29. 

2 The Short Constitution, by Wade and Russell, 211. 

3 The New Democracy, by Walter E. Weyl, 13. This book 
adds : ' ' The greatest merit — and the greatest defect — of the 
Constitution is that it has survived." 



xvi Jforetoorb 

Calvin Coolidge has declared. 1 "It is time, " he 
adds, "to supplement the appeal to the Law, which 
is limited, with an appeal to the spirit of the people, 
which is unlimited." As another proctor puts it: 
"Men and women need to be reminded that the 
duty of upholding the Constitution does not de- 
volve upon the Supreme Court alone ; it rests upon 
all departments of government, and, in the last 
analysis, upon the people themselves." 2 The 
Federalist 3 knew human nature when it said: 
''Man is very much a creature of habit; a thing 
that rarely strikes his senses will generally have 
but little influence on his mind." The Constitu- 
tion serves most of us so successfully that we 
rarely give it a second thought. We accept its 
guaranties as a sort of automatic benediction 
which we have always had, and always will have — 
never stopping to remember that whatever man 
has made, man can destroy. 

The truth is that "in reviewing the centuries of 
history prior to the founding of the Republic of 
the United States of America, we find no coun- 
try to which the historian can point and truth- 

1 Address at American Bar Association, 1922 Convention, 
San Francisco. 

2 Our Changing Constitution, by Charles W. Pierson, 17. 

3 No. 27. 



Jforetoorb xvii 

fully say: There was a government that worked 
well." 1 The truth equally is that this achieve- 
ment, now copied into the lives of many other 
grateful peoples, rests upon the bases of the 
Constitution, the rock whence we are hewn. 
It is time these truths had dominant reitera- 
tion. They need to be reintroduced into the 
program of American thought — an antidote 
to the nostrums of politico-medicine-men "who 
hope to aggrandize themselves by the con- 
fusions of their country," 2 or who cherish un- 
steady zeals that violate the mandates of history 
and experience. They need to be compulsory in 
the curricula of all American schools. "Our 
remedy lies in a return to those clear principles of 
reason and honor embodied in our Constitution. 
Its spirit is America's carrying the fervor of war 
into the practice of peace. There is the spirit of 
the Fathers in its pristine purity." 3 Justice Story 
published his famous Commentaries on the Constitu- 
tion of the United States in 1833 — a timely challenge 
for the re-birth of Constitutional fidelities, at the 
end of forty years of stormy Constitutional argu- 

1 Back to the Republic, by Harry F. Atwood, 14. 

2 The Federalist, No. 1. 

3 Letter, September 15, 1922, published in New York 
Times, written by Gertrude Atherton, author of The Con- 
queror, the romance of Hamilton's life. 



xviii Jforetoorb 

ment. It was a belated but invaluable appendix to 
The Federalist Papers which had initiated these 
faiths half a century before. In lieu of any such 
surpassing contribution to the equivalent necessi- 
ties of our own time, is there not utility in at least 
bringing The Federalist down-to-date, and ex- 
amining its recommendations to these problems of 
to-day? 

To be a Constitutionalist — such as Hamilton 
would be, if he were here to-day — one does not need 
to wall up his mind and worship the American 
Charter as a thing utterly inviolable against the 
touch of temporal hands. Hamilton himself was 
not wholly satisfied when the Constitutional 
Convention had finished its labors. But, broad- 
mindedly and with the spirit of true democracy 
in his soul, he subscribed unreservedly to the com- 
pleted document because it was the will of a repre- 
sentative majority, and because there was no 
better alternative. Gladstone's tribute to the 
Constitution — "the most wonderful work ever 
struck off at a given time by the brain and purpose 
of man" — was not literally applicable at the time 
of its inception; but it has become unequivocally 
true, with the passing of the decades, because 
nothing short of "the most wonderful work" could 
have served changing American conditions with 



Jforetoorb xix 

such brilliant, God-blessed advantage as has the 
Constitution. And if Hamilton could take it to 
his heart so faithfully when it was but an experi- 
ment, what would he do to-day when it has one 
hundred and thirty years of history to vindicate 
its authorship? If there was no better alternative 
then, how much less is there a better alternative 
now! It was the result of compromise in the 
beginning. 1 To-day it is the seasoned product of 
history and experience ! 

It is no infidelity to admit that Constitutional 
applications have grown and developed — changed, 
if you want to insist upon that word — with the 
changing conditions of America. On the contrary, 
it is supreme compliment to acknowledge that the 
Constitution has proven equal to any American 
emergency. Suppose it be true that " there was 
little or no belief in the unlimited capacity of the 
plain people to manage their own Government" 
in the beginning, and that " faith in the political 
capacity of the plain people did not exist among 

1 The Short Constitution, by Wade and Russell, 71, points 
out that the debates in the Constitutional Convention 
reveal 223 allusions to the government and institutions of 
other countries, the most important of which were the 
following: 130 allusions to England, 19 to France, 17 to 
the German States, 20 to Holland, 25 to Greece, 26 to 
Rome. 



xx Jforetoorb 

the plain people themselves." l It is equally true 
that the Constitution was written to serve no ob- 
jective other than the popular welfare, and that, 
with the splendidly expanding "political capacity 
of the plain people," it has amply served every 
legitimate expansion of democracy. James Bryce, 
in his great work upon The American Common- 
wealth, has said that "the Constitution has 
changed in the spirit with which men regard it, 
and therefore in its own spirit"; but he has also 
said that "it ranks above every other written Con- 
stitution for the intrinsic excellence of its scheme, 
its adaptation to the circumstances of the people, 
the simplicity, brevity and precision of its language, 
its judicious mixture of definition in principle with 
elasticity in details." This distinction between 
principle and details must be clearly borne in mind. 
It is the root of the whole problem. Changes in 
Constitutional applications "in no manner abridge 
the fact of its changeless nature and meaning." 2 
The solemn mandate upon the country is to pro- 
tect and preserve this changeless nature in respect 
to fundamentals. The menace is in trends that 

1 Steps in American Democracy, by Andrew C. McLaugh- 
lin, 71. 

2 Supreme Court language in South Carolina v. U. S., 
199 U. S. 437- 



jforefeDorb xxi 

depart therefrom. ' ' The conditions that have been 
wrought through these departures, this reckless 
agitation, and the enactment of approximately 
fifteen thousand new statutes each year, have had 
a disastrous effect upon this country and resulted in 
greatly lessening our influence for good in other 
countries. We have drifted from the Republic to- 
ward democracy ; from statesmanship to demagog- 
ism; from excellent to inferior service. It is an 
age of retrogressive tendencies." 1 

Many earnest literalists are particularly con- 
cerned over pronounced tendencies to concentrate 
more and more authority in the Federal Govern- 
ment, and proportionately to derogate the author- 
ity of the States. One such flatly declares that 
"Hamilton was mistaken when he predicted in 
The Federalist that the National Government would 
never encroach upon the State authorities." We 
quote further: "Some profess to view the recent 
encroachments of the Federal power as a triumph 
for the principles advocated by Hamilton and 
Marshall. . . . Such a claim does both an injus- 
tice. While they both stood for a strong National 
Government, neither of them contemplated any 
encroachment by that Government on the principle 
of local self-government in local matters or the 

1 Back to the Republic, by Harry F. Atwood, 20. 



xxii Jforetoorb 

police powers of the States. . . . Hamilton de- 
votes an entire issue of The Federalist to combatting 
the idea that the rights of the States are in danger 
of being invaded by the General Government, . . . 
and concludes that it is to be hoped that the people 
'will always take care to preserve the Constitu- 
tional equilibrium between the General and the 
State Governments. ' . . . Some will say that this 
is an age of progress and we are improving upon 
Hamilton. Others, however, think we are for- 
getting the wisdom of the Fathers." ■ All of these 
observations are defensible. The rising tide of 
paternalism runs counter to the express theory of 
the Constitution. Chief Justice Cnase, in the 
Supreme Court, once epitomized the correct rule: 
"The Constitution in all its provisions looks to an 
indestructible Union, composed of indestructible 
States." 2 The tendency toward excessive centrali- 
zation is the usual concomitant of war. Successful 
war requires "unified command " in very far-reach- 
ing senses. But for every such tendency there is a 
subsequent revulsion. Ten years after the Rebel- 
lion, the country tired of the extensions and some- 
times of the usurpations of Federal authority and 
reverted to the "Constitutional equilibrium, " 

1 Our Changing Constitution, by Charles W. Pier son, 83, 
84, 143, 144. 2 Texas v. White, 7 Wall, 700. 



Jforetoorb xxiii 

signalized in 1873 by the decision of the Supreme 
Court in the famous " Slaughter-house Cases.'* 1 
History will repeat itself. The effectual main- 
tenance of State units within their legitimate 
Constitutional sphere is essential to the American 
system. People cannot be governed at a distance, 
in their intimate concerns. On the other hand, 
there are some advantages in the growth of a 
healthy National conscience ; there are certain very 
decided advantages in uniformity of laws as be- 
tween peoples divided only by imaginary, State, 
boundary lines; and there is nothing in the true 
spirit of the Constitution which would ever insist 
upon the arbitrary maintenance of a State's rights, 
to the disadvantage of the whole common weal. 
Hamilton was essentially a Nationalist. His para- 
mount concern, like Lincoln's, was the perpetuity 
of Union under the unbroken Constitution. If he 
were here to-day he would unquestionably demand 
scrupulous attention to the maintenance of a legiti- 
mate "Constitutional equilibrium" between Gen- 
eral and State Governments: but he would find 
vastly greater menace in other and more seriously 
subvertive directions. Wherefore, The Federalist 
down-to-date, digging the deeper furrow, confines 
itself to three fundamental propositions. 
1 16 Wall, 36. 



xxiv Jforetoorb 

(i) The Government of the United States is a 
Representative Republic and not a pure Democ- 
racy. The difference is as profound to-day as it 
was when the foundations of the Constitution were 
set in the ages. "The. terms ' Republic f and 
1 Democracy ' are thoughtlessly and inaccurately 
used almost synonymously in dictionaries, in 
encyclopedias, and in political literature and dis- 
cussion. This country is frequently spoken of as a 
democracy, and yet the men who established our 
Government made a very marked distinction 
between a 'Republic' and a 'Democracy/ gave 
very clear definitions of each term, and emphati- 
cally said they had founded a Republic . . . which 
is the golden mean between Autocracy and Democ- 
racy." 1 The most serious of all modern dangers 
to the Constitution, and, therefore, to the welfare 
of the American people, are traceable to neglect of 
these distinctions. The Federalist 2 is particularly 
explicit in its admonitions upon this score. "A 
pure democracy" consists of "citizens who 
assemble and administer the Government in per- 
son"; in other words, it smacks of the commune. 
"Such democracies have ever been spectacles of 
turbulence and contention; have ever been found 

1 Back to the Republic, by Harry F. Atwood, 22. 

2 No. 10. 



jforetoorb xxv 

incompatible with personal security or the rights 
of property; and have in general been as short in 
their lives as they have been violent in their deaths/ ' 
In whatever degree we attempt to inoculate the 
Constitution with this virus, we invite a lethal 
fever ; and this very thing is going on, round about 
us, all the time. On the other hand, " a Republic/' 
continues Hamilton, "by which I mean a govern- 
ment in which the scheme of representation takes 
place, opens a different prospect, and promises the 
cure for which we are seeking. . . . The effect of 
the first difference is, on the one hand, to refine and 
enlarge the public views, by passing them through 
the medium of a chosen body of citizens, whose 
wisdom may best discern the true interest of their 
country, and whose patriotism and love of justice 
will be least likely to sacrifice it to temporary or 
partial considerations. . . . The effect of the 
second difference is that, even though men of 
factious tempers, of local prejudices, or of sinister 
designs, may, by intrigue, by corruption, or by 
other means, obtain the suffrages and then betray 
the interests of the people, yet the extent and ex- 
panse of the Republic and the size of its electoral 
units will minimize this danger." We are a Repre- 
sentative Republic. We are not a pure Democracy. 
The very size of the Nation repels the possibility 



xxvi Jforetoorb 

of advantage from the latter scheme. If it was im- 
practical in 1787, it is some thirty times more 
impractical to-day. Yet we are constantly trying 
to graft the latter on the former ; and every effort 
that we make in this direction, with but few excep- 
tions, is a blow aimed at the heart of the Con- 
stitution. 

Dr. Nicholas Murray Butler, President of Col- 
umbia University, says, in his Why Should We 
Change Our Form of Government: 

"The Representative Republic erected on the 
American Continent under the Constitution of the 
United States, is a more advanced, a more just and 
a wiser form of government than the socialistic and 
direct democracy which it is now proposed to sub- 
stitute for it. . . . To put the matter bluntly, 
there is under way in the United States at the 
present time a definite and determined movement 
to change our Representative Republic into a 
socialistic democracy. That attempt, carried on 
by men of conviction, men of sincerity, men of 
honest purpose, men of patriotism as they conceive 
patriotism, is the most impressive political factor 
in our public life of to-day. . . . This attempt is 
making while we are speaking about it. It presents 
itself in many persuasive and seductive forms. It 
uses attractive formulas to which men like to give 



Jforetoorti xxvii 

adhesion: but if it is successful, it will bring to an 
end the form of government that was founded when 
our Constitution was made, and that we and our 
fathers and our grandfathers have gloried in." 

If we are to desert the charts of American politi- 
cal experience, if we are to fling the genius of 
Constitutional Government to oblivion, if we are 
to experiment in hypothetical invention which 
pretends that it invites millennium, let us do it 
with open eyes and with the knowledge that we 
deny the pleadings of wisdom that has withstood 
a century of acid test. Well may The Federalist 1 
ask to-day as it did in the original crisis : " Is it not 
time to awake from the deceitful dream of a golden 
age, and to adopt as a practical maxim for the 
direction of our political conduct that we, as well 
as the other inhabitants of the globe, are yet re- 
mote from the happy empire of perfect virtue? 
Have we not already seen enough of the fallacy 
and extravagance of those idle theories which have 
amused us with promises of an exemption from the 
imperfections, weaknesses and evils incident to 
society in every shape?" 

(2) The Government of the United States is a 
Government safeguarded by checks and balances 
which refuse to any one department the privilege 

1 No. 6. 



xxviii Jforetoorb 

or opportunity of autocratic power. A chain is no 
stronger than its weakest link. Any fracture to 
any portion of this vital system of checks and 
balances is a breach of the system itself, and invita- 
tion to political oligarchy. Yet, in the false name 
of greater liberty, the people are constantly so- 
licited to meditate this sort of blow to the very 
essence of Constitutional liberty. The most casual 
study of numerous "progressive" notions vogue 
to-day, will demonstrate that they are not actually 
progressive at all; but that the effect of their injec- 
tion into government would be to put us back into 
ancient and reactionary conditions which the 
framers of the Constitution sought to cure. 
"Friends of progress sometimes forget that the 
real forward-looking man is he who can see the 
pit-fall ahead as well as the rain-bow; the man of 
true vision is one whose view of the stars is steadied 
by keeping his feet firmly on the ground." 1 The 
greatest Progressive of modern times, Theodore 
Roosevelt, was at heart an unswerving Constitu- 
tionalist. The greatest Progressive of the days of 
the foundation, Alexander Hamilton — if it be 
"progressive" to blaze new trails of freedom out of 
the maze of the Dark Ages — was uncompromising 

1 Our Changing Constitution, by Charles W. Pierson, 
148. 



Jforetoorb xxix 

in kindred faiths. It is the business of America 
ceaselessly to hunt new development in the expan- 
sion of human rights ; but it is poor service to this 
exalted purpose, to forsake the ground-work of the 
Charter under which human rights have advanced 
farther in a single century than they did in all the 
preceding vastnesses of time. 

(3) The Government of the United States is, in 
the last analysis, a reflection of the spirit of the 
people who are its sovereigns. If the people yield 
themselves to the pursuit of class advantage, the 
Government will soon partake of these same in- 
firmities. If faction sways the multitude, it will 
soon capture their institutions. Respect for human 
rights, respect for property rights, respect for com- 
munal rights, must inspire the citizenship if these 
blessings shall continue to find sanctuary in an 
unblemished Constitution. The stream can rise 
no higher than its source. Yet we see class selfish- 
ness, and faction, and caste, and bigotry organizing 
upon every side — organizing always in the name of 
the Constitution, but organizing always against the 
real, fundamental elements of that equality which 
is the trade-mark of America. Against them the 
warnings of The Federalist down-to-date must 
veritably thunder ; because The Federalist of yester- 
day put the bar sinister upon every one. 



xxx Jforetoorb 

These, then, are our pursuits. They cannot but 
commend themselves to the attention, even though 
they sometimes fail the approval, of all men and 
women who combine earnestness with good con- 
science in their approach to the responsibilities and 
the obligations of good citizenship. Hamilton, the 
individual, is of small consequence in these con- 
siderations. But Hamilton, the major author of 
the greatest exposition of the Constitution ever 
penned, the acknowledged mouthpiece of Washing- 
ton who presided over the body which gave the 
Constitution birth, the advance apostle of the 
puissant doctrines through which Marshall made 
the Constitution articulate, the composite oracle 
of the Constitution itself, deserves faithful consul- 
tation by those who w T ould preserve intact the 
Constitutional blessings which are our priceless 
heritage. 

In developing this theme, I have freely invoked a 
multitude of references, with scrupulous desire to 
credit every quotation. Probably some errors are 
inevitable, particularly when a layman's discussion 
must invade the tomes of Law. I can only hope 
that they prove to be an inconsequential minimum, 
and that the sincerity of purpose behind every 
argument may condone such inadvertencies. I 
particularly acknowledge the valuable informa- 



jforetoorb xxxi 

tion contained in Charles Warren's three vol- 
umes upon The Supreme Court in United States" 
History. 

Though stalwart, Hamiltonian Constitutional- 
ism seems indubitably written in the records of 
American history, beyond chance for misconcep- 
tion, it is with some trepidation that I make posi- 
tive application of his faiths. The memory of 
Hamilton belongs to the whole Nation, and some 
of those who love this memory, may reasonably 
object that any one expositor should presume to 
renew his presence in the maelstrom of modern 
events. But I make bold to believe that the end 
justifies the means. Two years ago, in a preceding 
volume, I undertook to demonstrate that, all 
things considered, Hamilton is "The Greatest 
American" who ever lived. If he so much as 
approximates such stature, his influence is sadly 
needed amid modern trends that challenge every 
tenet of his masterful philosophy. Indeed, it would 
be negligent ingratitude not to inquire what he 
would say and do if he were here to-day; and he 
himself would be the last to complain that his post- 
mortem influence should be rallied to the preserva- 
tion of this Constitutional Republic which, abjuring 
all lures and deceits, is destined to move on and on 
into greater glories and ever greater service to 



xxxii Jforetoorb 

human-kind. In this humble but patriotic spirit, 
let us "look unto the Rock whence we are hewn, 
and to the hole of the pit whence we are digged.'* 

Arthur Hendrick Vandenberg, 

Editor, The Herald, 
Grand Rapids, Michigan, 
December i, 1922. 



CONTENTS 



Foreword .... 

Worthy Counselors 

The Courts — And Liberty 

The Supreme Court in History 

The Court — And Its Latest Foes 

Justice and Industry 

"This Dangerous Vice" 

The Measure of Democracy . 

The Safety Valve . 

The Fountain Head 

Land-Marks . 



PAGE 
V 

3 
27 

56 
104 

145 
199 

250 

275 
301 

332 



XXX111 



ILLUSTRATIONS 

FACING 
PAGE 

Alexander Hamilton . . Frontispiece 

Etched by Jacques Reich. 

Federal Hall, New York 60 

The First Publication of the First Federalist 120 

A reproduction of Pages One and Two of The New York 
Packet, issue of October 30, 1787. 

Alexander Hamilton . . . . .180 

Engraved oy George Graham for James Rivington. 

Alexander Hamilton ..... 240 

From a Painting by Trumbull in the Chamber of Commerce, 
New York. (From Harper's Weekly, Copyright 1891 by 
Harper Brothers.) 

The First Completed Book .... 304 

Announcement in The New York Packet, issue of January 8, 
1788 — offering "To the People of America" an oppor- 
tunity to subscribe for the completed Federalist, in book 
form. 



xxxv 



IF HAMILTON WERE HERE TO-DAY 



Wottfyv Counselors; 

"The ideas of a statesman like Hamilton, earnestly bent 
on the discovery and inculcation of truth, do not pass away. 
Wiser than those by whom he was surrounded, with a 
deeper knowledge of the science of government than most 
of them, and constantly enunciating principles which ex- 
tended far beyond the temporizing policy of the hour, the 
smiles of his opponents only prove to posterity how far he 
was in advance of them. " — George Ticknor Curtis. 

"The Federalist is a complete commentary on our Con- 
stitution, and is appealed to by all parties in the questions 
to which that instrument has given birth." — Chief Justice 
John Marshall. 

The initial inquiry, in a discussion of this nature, 
is entitled to ask whether the two great authorities 
upon which it rests its case, are worthy the formid- 
able consideration thus demanded of modern citi- 
zenship. One eloquently convincing answer is 
that the question would not need to have been 
examined a century ago when America was nearer, 
in time and contact, to the quarrying of "the rock 
whence we are hewn." In those vivid days, when 
the lengthened shadow of post-Revolutionary 



4 M Hamilton Mere l&txt l^o=3Bap 

crisis still lay upon the land, neither the consum- 
mate sagacity of Alexander Hamilton, nor the 
Constitutional orthodoxy of The Federalist would 
have been a novelty to any literate person beneath 
the Flag. 

So long as men still lived who had suffered 
through the Republic's anxious travail, there were 
innumerable, friendly witnesses to testify, with 
Justice Story of Supreme Court that "Hamilton 
was the greatest and the wisest man of this coun- 
try, " and even foes to consent, with Jefferson, that 
"Hamilton is really a colossus," or with Burr, 
that "he who puts himself on paper with Hamilton 
is lost." Similarly, while the spell of original 
Constitutional convincement still lingered with its 
devotees, there were ample critics to agree with 
The Edinburgh Review 1 that " The Federalist . . . 
exhibits an extent and precision of information, a 
profundity of research, and an accurateness of 
understanding, which would have done honor to 
the most illustrious statesman of ancient or modern 
times." 

In still later periods, before liaison with the days 
of the foundation had been wholly lost, there con- 
tinued to be historical assessors like Daniel Webster 
to tell how "Hamilton touched the dead corpse 

1 No. 24. 



M Hamilton Were l&txt ®o=25ap 5 

of the public credit, and it sprang upon its feet," 
and like Roscoe Conkling, to declare "he was the 
greatest man ever produced by this hemisphere." 
Likewise, before the literature of the Constitution 
had ceased to draw inspiration from the fountain- 
head, there were journals, like Blackwood's Maga- 
zine 1 to honor The Federalist with due regard: "It 
is a work altogether which, for comprehensiveness 
of design, strength, clearness and simplicity, has 
no parallel; we do not even except or overlook 
Montesquieu and Aristotle among the writings of 
men." 

Always, meanwhile, there have been philosophers 
and publicists ready to put just estimate upon the 
Apostle and his Gospel of the Constitution. Thus 
Guizot: "Hamilton must be classed among the 
men who have best known the vital principles and 
fundamental conditions of Government; there is 
not in the Constitution of the United States, an 
element of order, of force, or of duration, which he 
has not powerfully contributed to introduce into 
it and to give it a predominance." Or John Fiske: 
"His intellect seemed to have sprung forth in full 
maturity, like Pallas from the brain of Zeus." Or 
Chancellor Kent: "I have little doubt that if 
General Hamilton had lived twenty years longer, 

1 January, 1825. 



6 M Hamilton IHere 3£ere ©o«3Bap 

he would have rivaled Socrates or Bacon, or any 
of the sages of ancient or modern times, in re- 
searches after truth and in benevolence to man- 
kind." Or Talleyrand: "I consider Napoleon, Fox 
and Hamilton the three greatest men of our time, 
and if I had to choose between the three, I would 
give without hesitation the first place to Hamil- 
ton." Or James Bryce : "Equally apt for war and 
civil government, with a profundity and amplitude 
of view rare in practical soldiers or statesmen, he 
stood in the front rank of a generation never sur- 
passed in history." Or Fiske again, referring to 
The Federalist: ' ' It was a literary monument great 
enough for any man and any nation." 

But the twentieth century, speaking now in 
terms of mass familiarity, remembers few of these 
things. It is a curious example of ingratitude, to 
what an extent Hamilton is a practically forgotten 
name in many quarters and The Federalist is prin- 
cipally a legend. The one is a vague recollection 
connected with a duel ; the other, a musty tract for 
some bookworm's study hour. Small wonder that 
the Constitution sometimes wants for sympathetic 
and understanding allies, when its "first friends " — 
Hamilton and The Federalist — are so largely lost to 
modern intimacies ! But the renaissance may prove 
to be simultaneous. That of the former certainly 



3f Hamilton Mere 3£ere ®o=Bap 7 

must follow close upon the latter. They are as 
inseparable as the Union — the Constitution, Hamil- 
ton, and The Federalist. President Harding has 
correctly said 1 : "The greater modern familiarity 
with Hamiltonism may become, the greater will be 
modern fidelities to essential American institu- 
tions/ ' 

These, then, are our authorities; and a momen- 
tary attention to the detail of their credentials will 
determine whether they are worthy counselors, 
and will make modern America more impression- 
ably alert to their joint admonition: "Every man 
who loves peace, every man who loves his country, 
every man who loves liberty, ought to have it ever 
before his eyes, that he may cherish in his heart a 
due attachment to the Union of America, and be 
able to set a due value on the means of preserving 
it." 2 

• • • • • • • 

First, the Man! The Man to whose memory a 
belated statue soon will rise upon the plaza of the 
Treasury Department in Washington — a statue 
upon the base of which, if the recommendation of 
the author of this book were followed, would appear 

1 Dedicatory letter in The Greatest American , Alexander 
Hamilton, by Vandenberg. 

2 The Federalist, No. 41. 



8 2Jf Hamilton ISere &ere £o=Sap 

this brief but all-inclusive epitaph : ' ' The Republic 
Is His Monument." 

We attempt no adequate biography. Obvious 
limitations forbid. But if the Recording Angel 
keeps books upon the lives of those who well serve 
both God and Human-kind, the major entries in 
the index to the Hamilton Apocalypse must sketch 
the revelation of a genius so complex, a precocity 
so rare, a courage so pure, a determination so bold, 
a fidelity so lofty, a motive so immaculate, a 
patriotism so BdfleSS, and a service so transcen- 
dental, that detail is unne< ry to complete the 

picture of a superlative American whose spirit 

should bring welcome benediction whenever it 
may be invoked in this or any other time. 

Born in the West Indies, January II, 1757, of 
Scotch and French Huguenot extraction, he first 
set foot in the distraught Colonies, which he was 
destined to weld into imperishable Union, as a 
friendless immigrant upon the docks of Boston, 
fifteen years of age, The prophecy of revolution 
lay upon his adopted land. On July 6, 1774, a 
stripling in years and in physique, he pushed his 
unbidden way to the rostrum at the famous " Meet- 
ing In The Fields,' called to make New York's 
liberty-zeals articulate, and, though great patriot 
orators were there, prepared for the occasion, his 



M Hamilton Were Here ®o=Bap 9 

maiden and extemporaneous philippic dominated 
the event; and, as the lightning leaped from his 
lips, men thrilled with holy joy that a torch-bearer 
to the new crusades had appeared to light the way. 
A boy of seventeen! 

His were no cloistered philosophies which scorned 
to practice what they preached. Quickly he was 
in the crude martial ranks that were to best the 
proudest monarchy on earth. A private! Soon a 
Captain of artillery ! Commanding the rear guard 
that covered Washington's retreat after the Battle 
of Long Island ! Taking the brunt at White Plains ! 
Across the ice-choked Delaware! Trenton! Then 
— the highest compliment the greatest of soldiers 
could pay to beardless youth — Aide and Military 
Secretary to the Commander-in-Chief, key-posi- 
tion on the staff of Washington! "The Little 
Lion, " the Army affectionately called him. All 
through the thorny griefs and sufferings at Valley 
Forge! Monmouth Court House! Knox and 
Laurens, Lafayette and Steuben loved him with 
devoted affection. Washington leaned heavily upon 
his pen and sword. Yorktown! Hamilton led the 
first assault ! The war for American independence 
was won. Freemen's hearts proved sturdier than 
imported steel. Now was the even greater task 
— to consolidate and perpetuate the victory. 



io M Hamilton Were Here ®o=Bap 

Offered a Commissionership of the French Loan, 
discussed for the British Peace Embassy, he took 
his first public office in 1782, when Robert Morris 
appointed him Continental Receiver of Taxes for 
New York. With Morris, he already was discuss- 
ing the fiscal structure which should liquidate the 
New World's debts. At twenty-five, a pivotal 
member of the Continental Congress, where one 
year of sham and powerless parliament convinced 
him that the hope of his country hung upon re- 
organization into Union. Futility rewarded his 
efforts to win a call for a Constitutional Conven- 
tion from the body of this Congress. But he was 
the first man to voice this aspiration on American 
Congressional floors. 

Three years hard labor in his profession in New 
York. At twenty-eight, the acknowledged leader 
of the New York Bar. The Annapolis Convention 
for the creation of inter-state commercial compacts. 
Hamilton present — at the head of New York's 
delegation — sensing the opportunity to launch the 
broader project that should generate a Nation. 
The call for the Philadelphia Convention, penned 
by Hamilton himself. Back to the New York 
Legislature, to force his State's representation 
therein — despite the bitter hostility of Governor 
Clinton, the most powerful politician of his day. 



M Hamilton Mtxt J&tvt ®o=Bap n 

rhen to Philadelphia, again spokesman for New 
ifork. " Hamilton was easily the most brilliant 
nan in the company." 1 The long Convention 
itruggle. Hamilton striving, sometimes for a con- 
;ervative extreme in order to guarantee safety to 
;he ultimate compromise, but always for effectual 
government that should be equal to the responsibili- 
;ies of conserving ordered freedom. Deserted by 
lis States-rights colleagues from New York, sign- 
ng the completed Constitution. But for him and 
lis flaming courage, New York would have been 
ibsent from that honor roll, and if New York had 
)een absent, no prophet dare say what might have 
)een the Constitution's and the Union's fate. 

Back to New York again and into the thick of 
combat to win his home State's ratification. Never 
lid intrepidity cope with more desperate odds. 
The Federalist — mightiest homily on Government 
iver issued from the pen of man. The Convention 
it Poughkeepsie. Hamilton at the head of a for- 
orn hope. Nineteen delegates, favorable to the 
Constitution, had been elected. Forty-six, fore- 
;worn to defeat the great experiment. The odds 
vere worse than two to one. New York, mid-way 
—north and south — in colonial geography, was the 
*eal key to Union. Without her, not one Union 

1 Robert W. McLaughlin's Washington and Lincoln. 



12 3ff Hamilton Wtvt l&ttt ©o=3@ap 

but probably three weak and quarrelsome Con- 
federacies. Six weeks of guerilla debate which 
would have broken a genius less sturdily endowed 
with the power of personality and the authority 
of right. Always, Hamilton on guard. Herodotus 
had no more compelling text when he wrote Leoni- 
das into everlasting history for his lonesome exploit 
at Thermopylae, nor Lord Macaulay when he 
immortalized Horatius at the Bridge. At last, a 
majority of two in favor of the Constitution! It 
had been Armageddon for the new Republic. Fate 
never hung by slenderer thread. But the dazzling 
leadership of Hamilton had saved the epochal day. 
The destiny of the United States, upon the knees of 
a youth of thirty-one ! 

Organization of the new Government under the 
Presidency of the great and noble Washington. 
Hamilton called to the cabinet as first Secretary of 
the Treasury. His fecund genius behind the or- 
ganization of every agency to administer the Con- 
stitution. He armed the Government with credit 
and with a productive revenue. Congress sought 
his guidance at every step. Report after report, as 
sapient as they were encyclopedic, went to the 
Legislature, in answer to its prayers for guidance. 
In flashing succession, he planned the revenue 
cutter service, recommended navigation laws, 



M Hamilton Were l&tvt ®o=23aj> 13 

drafted the first bill for a postal system, laid the 
foundation for the purchase and establishment of 
West Point, proposed the means for handling 
public lands, established the mint, advised the 
decimal system for our money, proposed the patent 
system, fore-cast the encouragement of manufac- 
tures through tariffs, engineered the politics which 
saved the repudiation of public debts and located 
the Capitol at Washington, planned the Bank of 
the United States. The Master Builder at the age 
of thirty-two ! Fighting off the hounds of defama- 
tion who tried ambush when they failed in fair 
attack. Jealous of his honor. Equally zealous 
that organization under the Constitution should 
succeed. 

Foreign involvements. War between France 
and England. Pursuant to Hamilton's advice, 
Washington's proclamation of Neutrality, setting a 
traditional American fashion which has lived to 
bless posterity, and likewise anticipating the 
" Monroe Doctrine." British impositions on our 
commerce. The Jay Treaty to end them amicably 
— first inspired and then defended by perpetual 
partnership between Washington and Hamilton. 
Meanwhile, inestimable service to the authority 
of the Constitution — first, by legalistic brief pro- 
posing, for the first time, its ''implied powers" — 



14 3f Hamilton ©Mere Ifatxt ®o=3@ap 

second, by crushing Western Pennsylvania's re- 
bellion against Federal excise power. Wherever 
the danger, there the service. Always, meanwhile, 
his invincible pen in uncompromising battle with 
every domestic heresy and every imported menace. 
Never flinching, never recreant. When Hamilton 
resigned, President Washington wrote him: "In 
every relation which you have borne to me I have 
found that my confidence in your talents, exertions 
and integrity has been well placed/ * 

President Adams, irascible, old patriot, resentful 
because Hamilton had not been his sled-length 
advocate, was forced ultimately to say: "Hamil- 
ton was all the time the Commander-in-Chief of 
the House of Representatives, of the Senate, of the 
Heads of Departments, of General Washington, 
and last, and least if you will it, of the President of 
the United States." Trouble with France. The 
X. Y. Z. papers. The country swept toward war. 
Washington recalled as Commander-in-Chief, con- 
senting to the draft only on condition that his 
designation should be nominal, and that Hamilton 
should be in actual control. Tremendous prepara- 
tions, with typical enthusiasm and thoroughness. 
Not a contingency left uncharted. Invasion of 
Louisiana and Florida contemplated, not only as 
martial strategy, but as an opportunity for essen- 



ffl Hamilton Wtxt Ifytvt ®o=29ap 15 

fcial National growth. Hamilton, the first Ameri- 
can to think continentally. Death of Washington. 
Hamilton, a Lieutenant-General, in first command 
until his honorable discharge at the end of trouble. 
Bungling diplomacy in the White House. Ulti- 
mately, peace without a conflict. 

The elections of 1800. Nullification's first ugly 
gesture toward the Constitution. Hamilton, as 
usual, at the front. Challenged by this seeping 
threat to the solidarity of Union. His party de- 
feated by Jefferson and Burr. The first great po- 
litical reaction. Equal Democratic electoral vote 
for Jefferson and Burr. Choice thus thrown into 
House of Representatives. Reckless in the anger 
of defeat, Federalists inclined to connive with the 
ambitious Burr to prevent Jefferson's election. 
Knowing the country's clear intent and expecta- 
tion, Hamilton refused to sanction any such ven- 
detta. Much as he distrusted Jefferson, he could 
not consent that an unscrupulous rascal should 
assume supreme authority over a Government 
to which he had dedicated his life. 1 It was due to 
him alone, and his sublimity of devotion to prin- 
ciple, that his greatest, outstanding rival succeeded 

1 Bryce correctly says in his American Commonwealth: 
"Hamilton's action — highly patriotic, for Jefferson was his 
bitter enemy — cost him his life at Burr's hands." 



16 M Hamilton Mere 3£ere ®o=3Bap 

to The White House, and that Aaron Burr did not 
become the third, and perhaps the last, President 
of the United States. 

Burr, bent on renewing his prestige, candidate 
for Governor of New York. Plotting broken 
Union. Planning Constitution subversion. 
Dreaming of a Northern Confederacy which he 
might dominate. Hamilton once more the defen- 
der of the faith. Bitter campaign. Burr defeated. 
Stirred to murderous revenge. Duel. Hamilton 
aimed in air — Burr, at the heart of the Master 
Architect of a Constitutional Republic. Death 
united all America at the funeral bier. The affec- 
tions of a Nation, shocked by tragedy into sudden 
realization of its love and loss, joined hearts and 
tears in as noble and impressive and eloquent a 
requiem as ever canonized any martyr in the story 
of the world. 

Such is the sketch — necessarily inadequate. 
But, between the lines, the blindest reader must 
find a record of surpassing portent. Libraries have 
been written to this text and left the subject un- 
exhausted. There were many other profound 
figures on the early stage — but none more profound. 
There were times when Hamilton erred — he was 
intensely human — but never at the expense of 
Constitutionalism, Union and the Republic. 



M Hamilton Mere l&tvt ©o=3Baj> 17 

Surely, such an American is a worthy counselor 
in any age. 

Who, of better right, bespeaks the spirit of the 
Constitution and the genius of our institutions, 
than the warrior who stood with Washington when 
independence was achieved ; the prophet who cried 
out for organized Union at Annapolis and Phila- 
delphia ; the philosopher who largely influenced the 
drafting of the mighty Charter ; the advocate who 
forged the argument upon which it made popular 
appeal; the crusader who bore triumphant lance 
against the enemies to ratification; the statesman 
who organized practically the entire machinery 
to serve its functions ; the exponent who proved its 
possession of a power equal to every exigency ; the 
loyalist who stood like the rock of ages against every 
effort to subvert its aims ; the martyr who died a 
victim to his own faiths and his own achievements? 

Who, better than the Builder whose " great 
plastic hand moulded the Confederacy into so 
compact, so beautiful, and so consistent a mass" 1 
can know of the headstones in the corner, the rock 
whence we are hewn? Who, better than so great a 
Constitutional Apostle as this one whom Marshall 
did not hesitate to scrupulously follow, and Story 

1 Life and Times of Alexander Hamilton, by Samuel 
Schmucker. 



1 8 M Hamilton Mtvt Jfytxt ®o-J@ap 

to approve, and who was himself deemed eligible 
to the highest judicial ermine, can interpret what 
the Constitution means? 1 

If, as one prominent modern author has declared, 
Hamilton is the patriot "to whom we owe more 
than to any other single individual for the standard 
form of government, and to whom the world owes 
more than to anyone else for enlightenment in the 
field of political science" 2 it would be wanton 
dissipation to ignore so rich a source of inspiration 
and illumination in regard to the problems of to- 
day. Indeed, the importance of what Hamilton 
would say and do if he were here, becomes so signal 
that no student, however faithful in his purposes, 
could be forgiven any speculations outside the 
vigorous and prescient record left by Hamilton 
himself. Wherefore, the particular record we have 
chosen becomes of next and scarcely secondary 
consideration. 



1 Justice Marshall said of Hamilton's argument, originat- 
ing the principle of liberal Constitutional construction and 
the doctrine of implied powers : "There was nothing in the 
whole field of argument which had not been brought for- 
ward." Justice Story pronounced Hamilton's effort "one 
of the most masterly disquisitions that ever proceeded from 
the mind of man." 

2 Back to the Republic, by Harry F. Atwood, 72. 



M Hamilton JHere Ifetxz tKo=23ap 19 

The Federalist was the name given to a series of 
eighty-five epoch-marking articles appearing in 
New York publications during the months when 
the Constitution hung in the balances. " Together 
they form one of the great classics of government," 
Dr. Charles W. Eliot has declared, prefacing their 
notice in the Harvard Classics. In clarity of logic, 
force of appeal, projection of vision and wisdom of 
advice, they come down through the decades with 
a living message that only the meanest apostate 
will attempt to deny. Their influence at the time 
of publication cannot be overestimated. They 
were the torch that lighted the dark and sorely 
beset paths of that minority of New York's citizen- 
ship which, with Hamilton, believed in the new 
Republic. They were charts of reassurance to the 
new Constitution's friends; unanswerable indict- 
ments to its foes. They were as daring as they 
were sound. They were as imperishably true as 
they were influentially effective. Without them, 
certainly without their dominating author, New 
York would have rejected the Constitution. New 
York's rejection would have broken the Union ere 
it was launched. Nor was The Federalist's immedi- 
ate influence purely local. The Federalist, wrote 
Senator Henry Cabot Lodge in his admirable Life 
of Hamilton , ''throughout the length and breadth 



20 3f Hamilton lilere J&erc CchBap 

of the United States did more than anything else 
that was either written or spoken, to secure the 
adoption of the new scheme." 

All of these essays were addressed "to the people 
of the State of New York." They appeared in 
The Packet, The Daily Advertiser, and in McLean's 
Edition of The Independent Journal, from the 
autumn of 1787 to the spring of 1788. All of them 
bore one simple Signature "Publius." 

Thus far we have mentioned only Hamilton in 
connection with their authorship. This has been 

through no disposition to ignore his incidental 

collaborators, but rather to reflect the verdict of 

that age and of history as to the domin mt responsi- 
bility. John Jay -Governor of New York, Am- 
bassador to England, Chief Justice of the Supreme 
Court — wrote five of the eighty-five Papers. James 

Madison subsequently President of the United 

States — WTOte fourteen. Hamilton and Madison 
probably joined authorship in three. The source of 
twelve is claimed by some to be in doubt, though 
small doubt can linger with those thoroughly 
familiar with Hamilton's incandescent style. These 
latter, and fifty-one undisputedly his own, comprise 
far the major portion and the major motif. We do 
not depreciate Madison and Jay. Both served 
large functions in the evolution of the Nation. 



M Hamilton Here S?ere ®o=3Sap 21 

Madison, in particular, was a host in himself when 
the Constitution was created. It but strengthens 
the compliment to Hamilton that such men as 
these should have been glad and willing to become 
Lieutenants under his sturdy Captaincy. Further- 
more, regardless of casual contribution from two 
other famous men, the fact remains that Hamilton 
endorsed every word in every Paper, and, therefore, 
made the total Federalist the expression of his 
creeds and faiths. 

It was the habit of those days for men to borrow 
sobriquets in writing for the press. As " Phocion, " 
Hamilton challenged post-war demagogy which 
aimed indefensible excesses of vengeance against 
ex-Tories in New York. There never was music 
to his ears in the mistaken plaudits of a mob. 
" Phocion' ' pleaded for "justice, moderation, 
liberality and a scrupulous regard to the Constitu- 
tion," banning "passion and prejudice" and the 
distractions due if "the Constitution is slighted or 
explained away upon every frivolous pretext." As 
" Pacificus, " Hamilton defended American neutral- 
ity when hot-heads, fevered with French sym- 
pathies, were scoring Washington and welcoming 
Citizen Genet. As "Americanus" and "Hora- 
tius, " he continued his appeals for what the modern 
lexicon would call 'unhyphenated Americanism." 



22 3ff Hamilton Mere 3£ere ©Q-JBap 

As "Camillus" he defended the Jay Treaty with 
England — a powerful message against " govern- 
ment by weak and vague words; against the policy 
of drift, which possesses neither the courage to 
foresee results nor the energy to prepare for them ; 
against those people, arguing interminably to delay 
action, who grudge every sacrifice whether its 
object be peace or war, and who denounce with the 
same cantankerous hostility all preparations as 
aggressive and all concessions as cowardice." All 
these postscripts to The Federalist can be read in 
perfect harmony with the doctrines evolved when 
it was ' ' Publius ' ' who held the pen. They not only 
confirm the essential authorship of The Federalist, 
but they amplify and elucidate its theme. So, too, 
The Continentalist — six papers written in 1781 — 
were an epitomized prologue, an advance miniature 
of The Federalist. "There is something noble and 
magnificent in the perspective of a great, Federal 
Republic, closely linked in the pursuit of a common 
interest, tranquil and prosperous at home, respect- 
able abroad, but there is something proportion- 
ately diminutive and contemptible in the prospect 
of a number of petty states, with the appearance 
only of Union, jarring, jealous and perverse, with- 
out any determined direction, fluctuating and 
unhappy at home, weak and insignificant by their 



3f Hamilton Were S?ere tEo=2Sap 23 

dissentions in the eyes of other Nations. . . . 
Happy America if those to whom thou hast in- 
trusted the guardianship of thy infancy, know how 
to provide for thy future repose, but miserable and 
undone if their negligence or ignorance permits the 
spirit of discord to erect her banners on the ruins 
of thy tranquillity." 

Equally well and earnestly may it be repeated 
in this modern time. Happy America if the guar- 
dianship of the spirit of the Constitution may 
continue to rule destiny, but miserable and undone 
if negligence or ignorance of "the rock whence we 
are hewn" shall govern the uneasiness of to-day 
and the uncertainty of to-morrow. 

The Federalist itself was chart and compass to 
the Constitution — was, and is. Draft of the first 
Paper was prepared in the cabin of a little vessel 
while Hamilton was gliding down the Hudson : but 
the last echo of the last Paper will not die so long 
as the American Constitution, of which it was the 
supreme interpretation, shall survive. "It holds 
the same high place in the literature of America 
that is occupied in that of Britain by the letters 
of Junius and the reflections of Burke on the French 
Revolution. . . . Shortly after its first appearance, 
it was translated into French by M. Buisson, and 
published in Paris. In that country, it has taken 



24 M Hamilton Mere 3£ere QCo=®ap 

its place by the side of Montesquieu's Spirit of 
Laws. It has been republished in Switzerland, and 
has been there honored as the worthy associate of 
the work of Burlamaqui on the same subject. It is 
known and appreciated in every country of Europe, 
just in proportion as the liberty of the press and 
liberty of speech are possessed and enjoyed." 1 

Should it not be equally known and appreciated 
in the land of its creation? One of the leading 
newspapers in the United States recently summed 
the case as follows : 

1 ' We cannot afford to let defense of the Constitu- 
tion rest upon its results, benignant as they have 
been. We see to-day that our people consists 
largely of two classes — the Americans who take 
their legacy of ordered liberty for granted, who 
have paid nothing for its gifts and arc only dimly 
conscious of what it means to American well-being, 
and a numerous class of newcomers who know 
nothing of American experience and its fruitage of 
political institutions and bring with them many 
theories and prejudgments which are inconsistent 
with our principles of progress. To awaken the 
former and instruct the latter is one of the chief 
duties of American statesmanship at this moment, 

1 Life and Times of Alexander Hamilton, by Samuel H. 
Schmucker. 



M Hamilton Were l&txt ®o=Bap 25 

and we must note that there are very few of our 
leaders who are showing any perception of this 
public need. On the contrary, for more than half 
a century, American thought has been infiltrated 
with economic, social, and political ideas imported 
from Europe. About the only polemics we have is 
that of radicalism, and we find our intellectual 
classes widely if not deeply infected with all shades 
of protest. Against this tendency we think it is 
high time there should be clear and vigorous resist- 
ance. Confirmed as we may be in allegiance to our 
American principles of ordered liberty and to the 
institutions which have given them such wonderful 
expression throughout our National history, we 
cannot afford to allow subversion to go un- 
challenged on the theory that they will defend 
themselves. Sophistry and plausible argument 
allying themselves with inevitable discontents can 
accomplish injuries which we were foolish not to 
avoid if we can. . . . This work lies to our hand, 
for leaders in public life, for the press, for the 
schools. The Nation needs a rededication to 
the doctrines and the institutions which have 
presided over its unprecedented progress and 
well-being." 1 

• • • o o • • 

1 The Chicago Tribune, October 21, 1922. 



26 M Hamilton Mere l&txt ®o=3Bap 

So we turn to our counselors — Hamilton and 
The Federalist; what the one would do and say if 
he were here to-day, gauged by what the other 
dictates from its oracle of history. Worthier coun- 
selors, with more profound credentials, could not 
be drafted for our admonition. Great as is our 
marvelous age, we have not graduated beyond all 
liability to eternal truths. This is ' ' the rock whence 
we were hewn, and the hole of the pit whence we 
were digged.' ' 



{Rje Courte-&nb JLibttt? 

"The vigour of Government is essential to the security of 
liberty ; in the contemplation of a sound and well-informed 
judgment, their interest can never be separated; a dangerous 
ambition more often lurks behind the specious mask of zeal 
for the rights of the people than under the forbidding appear- 
ance of zeal for the firmness and efficiency of Government. 
History will teach us that the former has been found a 
much more certain road to the introduction of despotism 
than the latter, and that of those men who have over-turned 
the liberties of Republics, the greatest number have begun 
their career by paying an obsequious court to the people; 
commencing demagogues, and ending tyrants." — The 
Federalist, No. i. 

If Alexander Hamilton were here to-day, it is 
no presumption to assert that the first of the many 
trends, away from the bases of the Constitution, to 
which he would interpose uncompromising objec- 
tion, would be the recurrent impatience which 
seeks, in one way and another, to strike down the 
Courts of the United States as an independent 
branch of Government. Nothing could aim more 
directly at the heart of the carefully balanced 
theory, since validated by time and experience, 

27 



28 M Hamilton Mere ?£ere ®o=2Sap 

upon which the Republic was established, than 
these perennial efforts to subordinate the Federal 
Judiciary either to the political mandate of Con- 
gress or to the hasty impulse of the people. It is 
an easy theme for soap-box harangue — this no- 
tion that the Supreme Court, for example, is a 
barrier to popular self-determination. But candid 
analysis soon confesses that the barrier does not 
stand against the mature judgment of the people. 
Rather, it stands only against those forces, regard- 
less of where or what they are, which would ravish 
the Constitution — the paramount possession of the 
people — without the consent of the people as for- 
mally expressed in the manner prescribed by Law. 
Without an independent Federal Judiciary, as 
established by the Founders of American Govern- 
ment, it can be simply proven that the Constitution 
becomes the merest "scrap of paper." Without an 
independent Federal Judiciary, it can be easily 
demonstrated that Liberty ceases to have her "day 
in Court. M Without an independent Federal 
Judiciary, it is a palpable axiom that the funda- 
ments of our ordered society — as prescribed more 
than a century ago, and as vindicated by thirteen 
progressive decades of experience — are broken. 
Yet, encroachments upon an independent Federal 
Judiciary continue to be vigorously proposed, and, 



3f Hamilton Here Here ©o=2aap 29 

unfortunately, continue to win thoughtless ap- 
proval among citizens who neglect to trace 
them to their lethal consequences. What at 
first sight may seem a remedy, is, in reality, a 
poison. 1 

If Hamilton were here to-day, there can be no 
doubt that he would turn the batteries of his in- 
vincible logic upon these proponents of Constitu- 
tional sabotage. All that he said and did to over- 
come the prejudices of his own time, applies with 
perfect pertinence to the prejudices and putative 
prostitutions of to-day. He would probably first 
acknowledge the good faith of most of those whom 
he would oppose, admitting — as he did in The 
Federalist 2 — that "an over-scrupulous jealousy of 
danger to the rights of the people, which is more 
commonly the fault of the head than of the heart," 
may ofttimes be misconstrued as "mere pretense 
and artifice, the stale bait for popularity at the 
expense of the public good." But then, with right- 
eous wrath, he would defend the good faith of 
loyal Constitutionalists whose "enlightened zeal 
for the energy and efficiency of Government" is so 
constantly "stigmatized as the offspring of a 

1 This pertinent sentence was used in The Federalist, No. 
22. 

2 No. 1. 



30 M Hamilton Mtn l&txz ®o=3iap 

temper fond of despotic power and hostile to the 
principles of Liberty." Certain it is that this man 
who battled so long and so heroically for the crea- 
tion and the erection of Constitutional Government 
on the essential basis of three independent branches 
— Executive, Legislative and Judicial — and who 
gave his life to defend the solidarity of Union as 
thus controlled, would never compromise one jot 
or tittle with modern wrecking crews which would 
tear from their places any of the boulders which he 
helped to set in the foundations of the world's first 
and greatest representative Republic. And, as he 
convinced his contemporaries of the truths he 
preached, he would convince his heirs to Liberty 
that they hazard their own most priceless endow- 
ment when they lean toward "experiments upon 
the public credulity, dictated either by a deliberate 
intention to deceive, or by the over-flowings of a 
zeal too intemperate to be ingenuous." 1 

That we embark upon no mere academic dis- 
cussion of abstract dangers is amply testified by 
more than a century of precedent, as detailed in a 
subsequent monitory chapter. But, that it is more 
than a mere historical contemplation, on the other 
hand, we are pertinently reminded by a modern 
movement — fathered by a vigorous, crusading 

1 The Federalist, No. 24. 



M liamtUon Here l&tvt ®o=©ap 31 

Senator of the United States, 1 and sponsored by a 
powerful national alliance 2 — to eliminate the 
United States Supreme Court as the judge of the 
Constitutionality of Acts of Congress. There can 
be no such subversions, be they great or small, 
which do not threaten the character of our Repub- 
lican Government 3 ; and there can be no permanent 
assurance of repudiation for the subversions except 
as this Republican character is thoroughly under- 
stood and appreciated. 4 

At the base of the Republic, let it never be for- 
gotten, is a written Constitution from which 
Government derives all of its authority. The crea- 
tion of this written Constitution was the great 
American innovation. The Constitution is the 
constant, fundamental expression of American 
purpose, the fountain-head of power. It is, in 
effect, the master-record which speaks immutably 

1 Robert M. LaFollette of Wisconsin. 

2 The American Federation of Labor. 

3 The adjective "Republican" in all these observations 
is a derivative from the noun "Republic," and bears no 
abstract relationship to the name of a political party. 

4 The Federalist, No. 10, emphasized this point and gave 
it practical application in terms of contemporary politics 
when it said: "According to the degree of pleasure and 
pride we feel in being Republicans, ought to be our zeal in 
cherishing the spirit and supporting the character of Fed- 
eralists. " 



32 M Hamilton Mere l&tn ©o=2Sap 

for the people. The Constitution and the people 
are synonymous. The people alone can change the 
Constitution. The Constitution fixes limits to the 
prerogatives of the Executive and Legislative 
departments of Government, as they affect each 
other and the rights of the people and the states. 
Then it erects the Judiciary to enforce these limita- 
tions and these grants, and to protect these rights. 
Eliminate the Judiciary, serving this defense, and 
the Constitution becomes a mere homiletic code to 
be interpreted, according to changing inclination, 
by the very agents whom it is supposed to restrain. 
Eliminate the Judiciary — or impair its decisive 
authority — and as Gouverneur Morris of New 
York once said, "the sovereignty of America will 
no longer reside in the people, but in Congress," or 
in the Executive, "and the Constitution is what- 
ever they choose to make it." Sovereignty cannot 
be in Congress and in the Constitution at one and 
the same time. A guaranty by the National 
authority must be "as much leveled against the 
usurpations of rulers as against the ferments and 
outrages of faction and sedition in the community." 1 
As between the Constitution and Congress, sover- 
eignty cannot desert the former without deserting 
the people. Therefore, the elimination or the re- 
1 The Federalist, No. 21. 



M Hamilton Mere Here ®o=®ap 33 

pression of the Judiciary, would be a blow unwit- 
tingly aimed by the people at themselves. 

"If the interpretation of a written Constitution 
is not committed to Judges, what use is it? If 
the majority can do whatever they chose to declare 
Constitutional, what better is it than the revocable 
charters which absolute monarchs in Europe 
amused themselves by granting, for some years 
after 1815?" 1 

Washington's Farewell Address pleaded the 
need for these Constitutional stabilities lest "the 
alternate triumphs of different parties, make the 
public administration the mirror of ill-conceived 
and incongruous projects of faction, rather than 
the organ of consistent and wholesome plans, di- 
gested by common councils, and modified by 
mutual interests." The Federalist 2 pronounced the 
truth: "The accumulation of all powers, Legisla- 
tive, Executive and Judiciary, in the same hands, 
whether of one, a few, or many, and whether 
hereditary, self-appointed or elective, may justly 
be pronounced the very definition of tyranny." 
It cannot be said too bluntly or too often that sub- 
version, no matter what its pretext or guise, of the 

1 This question was thus asked by The Nation, fifty years 
ago, in an issue of February 17, 1870. 

2 No. 47. 



34 3f Hamilton Mere J^ere ®o=23ap 

Federal Judiciary, is subversion of the Constitution, 
and, therefore, in the final analysis, an attack upon 
the real common welfare of the people themselves. 
Yet every such enterprise presents itself in the 
name of ' ' popular rights" — when, in fact and result, 
it is addressed to a nullification of popular rights 
and liberties. Let it be always remembered that 
"Liberty may be endangered by the abuses of 
liberty as well as by the abuses of power." 1 

It is unfortunate that the Judiciary is the easiest 
branch of the Government to attack; but it is 
inevitable because, by the nature of its cloistered 
works, the people are not in close and constant con- 
tact with it. 2 This is an instance where distance 
does not lend enchantment. But it is no less im- 
portant because rarely in personal contact with the 
citizen, than is the magnetic pole, because not in 
immediate proximity to every compass. The same 

1 The Federalist, No. 63. 

2 The Federalist, No. 27, correctly pointed out that "the 
more the operations of the national authority are inter- 
mingled in the ordinary exercise of Government, the more 
the citizens are accustomed to meet with it in the common 
occurrences of their political life, the more it is familiarized 
to their sight and to their feelings, the further it enters into 
those objects which touch the most sensible chords and put 
in motion the most active springs of the human heart, the 
greater will be the probability that it will conciliate the 
respect and the attachment of the community." 



M Hamilton Mtxt l&txz ®o=iaap 35 

relative utility is served by both, regardless of the 
distance through which they indispensably func- 
tion. The Judiciary's susceptibility to attack 
makes it the greater charge upon the loyalty of the 
citizen who would sustain the Republic. These 
outposts of the Constitution, like the outposts of 
an army, are as constantly essential as they are 
constantly the points of greatest danger. To ignore 
the outposts is to neglect mass-safety. Because the 
Judiciary is usually the buffer which must feel the 
brunt of passion when it becomes necessary for 
some branch of Government to defend the Con- 
stitution against encroachment, it is too frequently 
estimated by thoughtless citizens as the mere agent 
of restraints that are irksome and reactionary. 
But he is a superficial student of Constitutional 
freedom who does not agree with the great prin- 
ciple announced by Edmund Burke: "The re- 
straints on men, as well as their liberties, are to be 
reckoned among their rights; . . . society cannot 
exist unless a controlling power over appetite and 
will be placed somewhere ; it is ordered in the eternal 
constitution of things that men of intemperate 
minds cannot be free; their passions forge their 
fetters." James Russell Lowell proved that the 
Judiciary and the Constitution are inseparable — 
"Our written constitutions are an obstacle to the 



36 M Hamilton JUere l&zvt ©o=23aj> 

whim, but not to the will of the people' ' — because 
the "Constitution" is an " obstacle* ' to nothing 
except as it possesses a Judiciary to render its 
authority articulate and vital. Secretary of State 
Charles E. Hughes, upon the occasion of his fare- 
well to Brazil at the end of his pilgrimage to the 
Brazilian Centennial Exposition 1 declared: "The 
institutions of liberty rest for their final security in 
the self-restraint of those who love liberty too 
much to destroy its essential foundations." Nobly 
spoken — as Hamilton would speak if he were here 
to-day ! The Federalist 2 itself had this to say : 

"Though the Courts may have displeased those 
whose sinister expectations they may have disap- 
pointed, they must have commanded the esteem 
and applause of all the virtuous and disinterested. 
Considerate men, of every description, ought to 
prize whatever will tend to beget or fortify that 
temper in the Courts; AS NO MAN CAN BE 
SURE THAT HE MAY NOT BE TO-MORROW 
THE VICTIM OF A SPIRIT OF INJUSTICE, 
BY WHICH HE MAY BE A GAINER TO- 
DAY. And every man must now feel that the 
inevitable tendency of such a spirit is to sap the 
foundations of public and private confidence, and 

1 September, 1922. 

2 No. 78. 



M Hamilton Were l&txt ©o^Bap 37 

to introduce in its stead universal distrust and 
distress." 

Of course, it is not always those of "sinister ex- 
pectations" whom the Judiciary disappoints. On 
the contrary, the Supreme Court of the United 
States is not infrequently required to accept the 
mandate of the Constitution and rule against ob- 
viously useful projects because the statutes behind 
these projects clash with the Constitutional divi- 
sion of powers as between States and the Federal 
Government. Thus, there were no "sinister expec- 
tations" in the hearts of those who were disap- 
pointed when the Court found that Congress had 
no Constitutional authority to proscribe child- 
labor. But there are distinctly sinister purposes in 
these same hearts if, in such circumstance, instead 
of moving for a Constitutional Amendment to cure 
the defect in the Charter itself, they leap to the 
hasty and indefensible expedient of attempting to 
penalize the Court for interpreting the Charter as 
it is rather than as it ought to be. The Court has 
but one duty — to mirror the Constitution as it is, 
to the best of fallible human ability. If the Con- 
stitution fails an essential purpose, as it did in the 
instance of child-labor, it is for the people — the 
people only, not the Courts or Congress — to change 
the Constitution, as they most certainly should and 



38 M Hamilton Mere Here Qi;o=3Bap 

most certainly will in this instance. " Until the 
people have, by some solemn and authoritative act, 
annulled or changed the established form, it is 
binding upon themselves collectively as well as 
individually; and no presumption or even knowl- 
edge, of their sentiments, can warrant their repre- 
sentatives in a departure from it, prior to such an 
act/' 1 There can be no other American doctrine, 
except as we bid the Constitution adieu — and if, 
in the name of a treacherous "progressivism," we 
are to embark upon that sort of nullification, at 
least let it be with eyes that are open and ears that 
are not deaf to the admonitions of reason and ex- 
perience. "The basis of our political systems," 
declared Washington in his Farewell Address, "is 
the right of the people to make and to alter their 
Constitutions of Government ; but the Constitution 
which at any time exists, 'till changed by an ex- 
plicit and authentic act of the whole people, is 
sacredly obligatory upon all; the very idea of the 
power and the right of the people to establish 
Government presupposes the duty of every in- 
dividual to obey the established Government." 
"If the zealot, impatient of the wise caution and 
delay enjoined by the Constitution, would break 
down its barriers to hasty action," said Henry D. 
1 The Federalist, No. 78. 



ffl Hamilton Mere $$txt ®o=2aap 39 

Estabrook," 1 "he should be compelled, if only as 
a penance, to study the Constitution and to know 
all the circumstances out of which it grew, the 
quality of the men who fashioned it, as well as the 
quality of the work accomplished by them. ,, 

It should be clearly understood, in these con- 
nections, that nobody is so parochial as to pretend 
that the Constitution is infallible, and that, in its 
original promulgation, it was immune to improve- 
ment as changing conditions might develop chang- 
ing needs. On the contrary, the Fathers themselves 
recognized their own limitations ; and nothing could 
more convincingly testify to their prescience than 
their provision, within the Constitution itself, of 
ample machinery for Constitutional amendment 
and for the expansion of Constitutional powers. 
Indeed, The Federalist 2 boasted that reasonable 
elasticity was one of the Constitution's virtues: 
"We must bear in mind that we are not to confine 
our view to the present period, but to look forward 
to remote futurity. Constitutions of civil Govern- 
ment are not to be framed upon a calculation of 
existing exigencies, but upon a combination of these 
with the probable exigencies of ages, according to 

1 Address in Kansas City, Missouri, September 26, 19 13, 
before Missouri Bar Association. 

2 No. 34. 



40 M Hamilton (Here 3£ere ®o=23ap 

the natural and tried courses of human affairs. 
Nothing, therefore, can be more fallacious than to 
infer the extent of any power, proper to be lodged 
in the National Government, from an estimate of 
its immediate necessities. There ought to be a 
CAPACITY to provide for future contingencies as 
they may happen; and as these are illimitable in 
their nature, it is impossible safely to limit that 
capacity." The Fathers, in other words, did not 
deny the growth of Constitutional wisdom nor did 
they fore-close its processes in years to come. 
Paternal respect, as well as elementary common 
sense, recommend that we be no less humble in the 
search for truth — and that we neither deny the 
sources of Constitutional wisdom nor neglect its 
controlling currents. 

The Constitution already has been amended 
nineteen times. ■ It will be amended again when- 
ever the mature judgment of the people concludes 
that changes will spell permanent advantage. The 
Constitutional Loyalist is not required to set his 
face like flint against all consideration of all Amend- 

1 The first ten Amendments constitute the "Bill of 
Rights" and were ratified immediately after the Constitu- 
tion became effective; the eleventh, in 1798; the twelfth, in 
1804; the next three, following the Civil War; the last four, 
since 1913. 



M Hamilton Mere l&txz ®o=®ap 41 

ments. That posture would be reactionary and 
purblind. The danger is in other directions: either 
from an impatient effort to evade the Constitution 
without amending it, and to subvert it without 
authority, or from a lethal attempt to amend it in 
those fundamentals which involve the genius of the 
entire Constitutional plan. One does not need to 
embrace these latter revolutionary purposes in 
order to be "progressive"; indeed, to embrace 
them is to be destructive of the sources of all 
" progress" in an ordered Republic. 

Usually, as we have said, these subversions select 
the Judiciary as the easiest target. Indeed, since 
it is the Judiciary which finally stands alone as the 
last and constant barrier to Constitutional sub- 
version, it is not illogical that all those who seek 
easier access to licenses which the Constitution 
interdicts, sooner or later should concentrate 
attack upon the power which inevitably opposes 
and ultimately defeats these perverse aspirations. 
Thus, it is not illogical — from the view-point of 
those who harbor such ambitions — that the life 
tenure of Federal Judges should be exchanged for a 
system of periodical elections, so that the Courts 
may be held accountable to the uncertainties of 
popular fancy and the penalties of frenzy, instead 
of to the unswerving mandates of the Constitution. 



42 ffl Hamilton Mere ?£ere ®o=23ap 

But it would be decidedly illogical for the body- 
politic to join in these subtractions from the im- 
pregnability of a Judiciary which, in the final 
analysis, must measure its service to the Constitu- 
tion, and, therefore, to the people, in proportion to 
its independence of ulterior influences. 

11 If the Courts of justice are to be considered as 
the bulwarks of a limited Constitution," said The 
Federalist j 1 "this consideration will afford a strong 
argument for the permanent tenure of Judicial 
offices, since nothing will contribute so much as 
this to that independent spirit in the Judges which 
must be essential to the faithful performance of so 
arduous a duty. . . . This independence of the 
Judges is equally requisite to guard the Constitu- 
tion and the rights of individuals from the effects 
of those ill-humours which the arts of designing 
men or the influences of particular conjunctures 
sometimes disseminate among the people them- 
selves, and which, though they speedily give place 
to better information, and more deliberate reflec- 
tion, have a tendency, in the mean time, to occa- 
sion dangerous innovations in the Government, and 
serious oppressions of the minor party in the 
community." 

If the Federal Judiciary were brought within 

1 No. 78. 



3f Hamilton Mere l^ere ®o=2Sap 43 

direct reach of electoral dismissal — let it not be 
overlooked that the Constitution provides the 
means of their dismissal for cause — the interpreta- 
tion of the Constitution would become a matter 
of biennial referendum, and the character of the 
Constitution — always reflected by the Courts — 
would accommodate itself to the mutable breezes 
of shifting political dominion. In other words, the 
Constitution would cease to be the Rock of the 
Covenant. It would become a weather-vane, 
responsive to the capricious winds and the fickle 
hurricanes of politics. 

That this disaster has always been escaped under 
the still existing independence of the Bench, is 
testified by the eloquent fact that Justices named 
by Jefferson did not hesitate to sustain Nationalistic 
policies obnoxious to him, that Justices appointed 
by Jackson ruled against him in some of his most 
cherished purposes, that Lincoln, upon occasion, 
was vetoed by his own Judicial appointees — ex- 
amples that could be infinitely multiplied. Truth 
is that the independence of the Court has been and 
must continue to be second only to the independ- 
ence of the Constitution itself. The American 
people could make no greater mistake than to 
anticipate the strengthening of Liberty and Justice 
by weakening their citadels. Somewhere in every 



44 3tf Hamilton Mere 3£ere ®o=®ap 

system that attains permanence and serves con- 
stancy, there must be an immotile standard which 
suffers no vicissitudes. The same three feet must 
always make the same yard, regardless of the tran- 
sient advantage which someone might attain by 
shortening it to two, or lengthening it to four. 
Similarly the standard of the Constitution must be 
indefeasible, and its administration must be con- 
secutive in policy and interpretation. Otherwise, 
the Ship of State drifts upon the rising and the 
falling tides, responsive to both, faithful to neither. 
It neglects its chart and throws away its compass. 
Hamilton, if he were here to-day, would no more 
compromise with those who challenge this phi- 
losophy than he would, or did, compromise with 
Aaron Burr. 

Somewhere, let it be repeated even at the danger 
of becoming tiresome, the voice of the Constitu- 
tion, in the American system, must speak with 
constancy; and where, if not through this Federal 
Judiciary — " independent of party, independent of 
power, and independent of popularity"? 1 Justice 
Field, resigning in 1897, said: "Senators represent 

1 This phrase comprises a toast given at a dinner in 
Washington in 1801; it "has expressed the aim, and sub- 
stantially the achievement of the Court, in the 120 years 
that have since elapsed." The Supreme Court in U. S. 
History, by Charles Warren, i, 21. 



3f Hamilton Were 3^ere tEo=2Sa|> 45 

their States, Representatives their constituents; 
but this Court stands for the whole country. " "It 
would be as rational to talk of a solar system with- 
out a sun as a Constitution without an independent 
Judiciary," observed William Wirt in 1832. Nor 
has the " astronomy" of political science changed 
one whit with the intervening years. If we forget 
the law of gravity, it is still the law of gravity 
despite our lapse. 

" Justice is the end of Government," said The 
Federalist. 1 "It is the end of civil society. It 
ever has been and ever will be pursued until it be 
obtained, or until liberty be lost in the pursuit. In 
a society under the forms of which the stronger fac- 
tion can readily unite and oppress the weaker, 
anarchy may as truly be said to reign as in a state 
of nature, where the weaker individual is not secure 
against the violence of the stronger; and as, in the 
latter state, even the stronger individuals are 
prompted, by the uncertainty of their condition, 
to submit to a Government which may protect the 
weak as well as themselves; so, in the former state, 
will the more powerful factions or parties be gradu- 
ally induced, by a like motive, to wish for a govern- 
ment which will protect all parties, the weaker as 
well as the more powerful." 

r No. 51. 



46 M Hamilton (Mere l&txt ®o=Bap 

Among other transient irritants which periodi- 
cally set off a bombardment of the Federal Courts, 
and a corollary barrage laid down upon the Con- 
stitution, is the issuance of writs of injunction, 
particularly in Labor disputes. But why should 
this sort of responsibility, which belongs solely 
upon statute Law, thus be amplified against the 
Courts and the Constitution? The use of the in- 
junctive process — particularly, temporary injunc- 
tions issued in Labor disputes — is a moot subject. 
Theodore Roosevelt, while President, did not hesi- 
tate to condemn certain elements of injustice 
which have seeped into this situation, though he 
solemnly declared: "Even if it were possible, I 
should consider it most unwise to abolish the use 
of the process of injunction/* 1 William Howard 

1 Message to Congress, January 31, 1908: "The process 
of injunction is necessary in order that the courts may main- 
tain their own dignity and in order that they may in effec- 
tive manner check disorder and violence. The Judge who 
uses it cautiously and conservatively, but who, when the 
need arises, uses it fearlessly, confers the greatest service 
upon our people, and his preeminent usefulness as a public 
servant should be heartily recognized. But there is no 
question in my mind that it has sometimes been used heed- 
lessly and unjustly, and that some of the injunctions issued 
inflict grave and occasionally irreparable wrong upon those 
enjoined. It is all wrong to use the injunction to prevent 
the entirely proper and legitimate actions of Labor organiza- 
tions in their struggle for industrial betterment, or under 



M Hamilton Mere Tfytn tEo=2Bap 47 

Taft, while President, did not hesitate to admit 
that the issue of a temporary restraining order 
without notice has been abused by its inconsider- 
ate exercise, but he flatly declared: "Take away 
from the Courts, if it could be taken away, the 
power to issue injunctions in labor disputes, and it 
would create a privileged class among the laborers 
and save the lawless among their number from a 
most needful remedy available to all men." x There 
has been the utmost frankness always in the dis- 
cussion of this subject. The Law has been changed 
from time to time. Perhaps it will be changed 
again — though it should be observed that Labor 
invites a precedent of utmost menace to its own 
rights and advantages whenever it seeks any ele- 
ment of "class favoritism" as a principle of Amer- 
ican political economy. It is an inalienable Amer- 
ican privilege to discuss these statute policies. 
Labor would be stagnant if it did not look jealously 
upon all these subjects. But all this is beside the 

the guise of protecting property rights, unwarrantably to 
invade the fundamental rights of the individual." 

1 Message to Congress, March 4, 1909: "The American 
people, if I understand them, insist that the authority of the 
Courts shall be sustained, and are opposed to any change 
in the procedure by which the powers of a Court may be 
weakened and the fearless and effective administration of 
justice be interfered with." 



48 ffl ^amtltott (Here J^ere {Eo=Bap 

point. The point is: why drift, easily and thought- 
lessly, from complaint against a repressive statute, 
to complaint against Judges who would be crimi- 
nally derelict if they ignored statutes until changed 
by due process of Law, and then against Courts 
which would defile basic Americanism if they de- 
serted these due processes of Law, and finally — in 
a climax of illogical desperation — against the Con- 
stitution itself? The paramount function of Courts 
and Constitution is to provide an independent, 
untrammelled sanctuary against invasions of in- 
dividual and collective rights. If the sanctuary be 
razed, what possible form of protection can take its 
place? The Courts will listen as readily to the 
citizen whom an injunction offends as to the citizen, 
or group of citizens, who ask that it shall issue. 
But if this common fountain-head of justice be 
broken because it functions for the latter citizen, 
how can it remain to protect the former? 

Whenever Labor disputes get into Court, or 
when Labor deems itself aggrieved by any invasion 
of its rights, it is among the first and the loudest — 
as it should be, as it has a right to be, as it is in- 
tended that it shall be — to cry out against the UN- 
CONSTITUTIONALITY of the offense against it. ■ 

1 For instance, September n, 1922, at Atlantic City, 
President Samuel Gompers of the American Federation of 



M Hamilton Mtvt Here ®o=Bap 49 

In other words, it leans upon the Constitution 
and acknowledges not only the righteousness 
of the Constitution's purposes, in relation to 
the rights of man, but also the Constitution's 
saving power to defend these rights. Should it not, 
then, be as zealous in defense of the Constitution 
and the due process of Law, as it is in claiming pro- 
tection for itself under them? Must not the forti- 
fication be preserved if it is to be of any saving 
utility? What possible justification, in logic or 
self-defense, can there be for a proclamation on 
Labor's behalf, when a questioned injunction issues, 
to the effect that "the injunction invades our Con- 
stitutional rights and SHOULD BE TREATED 
AS A SCRAP OF PAPER"? 1 To treat the order 
of a Federal Court as a " scrap of paper," is to defy 
the Court which is the agent of the Constitution, 
and, therefore, to defy the Constitution itself. 
Such a doctrine, carried to its ultimate consequence, 
would wreck the Constitution. Is it not a gross 

Labor branded the Daugherty injunction in the railroad 
strike as "an invasion of the Constitutional guaranty of the 
founders of the Republic." In the same case, the same day 
at Chicago, Attorney D. R. Richberg, representing the 
strikers, argued that the injunctive process "deprived the 
defendants of their Constitutional safeguards." 

1 Newspaper quotations, September 2, 1922, of Mr. 
Gompers' comments on the Chicago injunction. 



50 M Hamilton ®Hete ©ere ®o=Bap 

and pathetic anomaly to plead for "Constitutional 
rights," and then to recommend the destruction of 
the Charter under which the rights exist? "Men 
still have some Constitutional rights in America, 
and we shall stand on them," declared another 
leader in this particular controversy. 1 A fair, 
square challenge — thoroughly American, thor- 
oughly Constitutional! But! Surely, it is an 
axiom that the source of these rights, the Con- 
stitution, and the agencies through which the rights 
must find protection, the Courts, must be of para- 
mount concern to those who expect to enlist these 
entrenchments in the defense of their rights! We 
are moving, in America, into a new era of greater 
regard for the equitable industrial recognition of 
Labor. This trend cannot be too pronounced. 
It is overdue. But if the concomitant of this new 
advantage should be an invasion of the basic theo- 
ries of American Government, in the mistaken 
notion that a breach in the walls of the Constitution 
can be of the slightest permanent utility to any 
citizen or any class, the era's debits will far out- 
weigh its credits for all of us, Labor itself most 
emphatically included. 

1 Statement by W. H. Johnson, President of the Inter- 
national Association of Machinists, published September 2, 
1922. 



M ^amtlton Mere J^ete ®o=®ap 51 

It ought to be unnecessary to multiply exhibits 
to support this particular section of our study. 
Let one more suffice. How inconsistent is the 
attitude of the radical propagandist who, in one 
breath, purposes the destruction of the American 
form of Government, and, in the next breath, 
appeals to the Government and the Constitution 
for protection of his " rights" when someone tries 
to rob him of his privilege of "free speech"! A 
mass meeting in Madison Square Garden, New 
York City, on May 31, 191 7, ' demanded "that the 
Government shall not suspend the liberties of the 
people as guaranteed to them by the Constitution," 2 
and contemporaneously resolved to deny all sup- 
port to those war measures through which the 
preservation of the Government and the Con- 
stitution were possible! They demanded defense 
and voiced defiance, in the same apostrophe. They 
sought the sanctuary and deserted it, in one single 
movement. How, pray, could the Constitution 
and the Government, unsupported by their sub- 
jects, provide their subjects with the protection 
which depended upon the reciprocal support which 
their subjects withdrew? So, too, with the radical 

1 Under the auspices of the so-called Conference for 
Democracy and Terms of Peace. 

2 New York Call, June i, 1917. 



52 M Hamilton JKBere J^ere ©o=©ap 

wing of the Socialist Party during the war. The 
"St. Louis Platform" of the Socialist Party, 1 
adopted in May, 191 7, pledged itself to "interna- 
tionalism" as opposed to "the false doctrine of 
national patriotism," promised "continuous, active 
and public opposition to the war through all the 
means within our power," and committed itself 
to "unyielding opposition to all proposed legislation 
for military or industrial conscription," etc. In a 
word, it sought the martial defeat of Amcrica-at- 
war, and the crushing of Constitutionalism beneath 
the innovations of an imported communism. It 
treacherously struck at the critical moment of 
greatest travail, and ceaselessly persisted in hideous 
sedition which — thank God! — had no effect other 
than to galvanize the implacable fidelity of an 
overwhelming American majority into grim de- 
termination that Columbia should not be shot in 
the back/ Yet— strange mockery! — many of 

1 Proclamation and War Program; No. 5 of the Series of 
Organization Leaflets issued monthly by the National office 
of the Socialist Party, headquarters, No. 803 W. Madison 
Street, Chicago. 

2 In justice to thousands of loyal Socialists who bore their 
full share of war burdens, it should be said that this renegade 
wing of the party was repudiated no more vigorously any- 
where than among these same loyal Socialists themselves — 
men who proved that Socialistic faiths do not need to be 
automatically antagonistic to American fundamentals. 



M Hamilton Mere l&txt ^a=Bap 53 

these same incendiaries rushed to embrace the 
Constitution and to plead its guaranty of their 
individual rights, the first moment they were 
challenged for trying to destroy the very Thing 
upon which they ultimately relied for relief and 
protection. The Federalist 1 indicated "how un- 
equal parchment provisions are to struggle with 
public necessity.' ' The Constitution becomes 
something more than " parchment " only when it is 
vitalized by the uncompromising fidelity of those 
whose liberties it charts. How tragically insane, 
then, is the view of those fanatics who refuse to 
be faithful, yet expect the " parchment' ' to serve 
them in their dire emergencies! How incongruous 
to seek "safety from the very sources which they 
represent as fraught with danger and perdition." 2 

Some Americans have a passion for inconsist- 
ency. For the sake of posterity, it is to be hoped 
their moods shall never become commandingly 
contagious. The controlling necessity, in America, 
for a fundamental Constitution and Government, 
immune to flux, is no better argued than by a con- 
templation of these inconsistencies, and a moment's 
speculation as to what sort of a whirligig the Na- 
tion would become if committed to the unstable 
whims of such dissonant minds. 

1 No. 24. 2 The Federalist, No. 29. 



54 3tf Hamilton Mere l^ere ®o=JBap 

The stability of American Government and the 
Constitution and the Federal Judiciary can never 
be disassociated, one from the other. A chain is 
no stronger than its weakest link. Since the Judi- 
ciary is "the weakest link," in point of popularity, 
though the strongest in point of utility, its con- 
stant support is a mandate of necessity. " It is an 
exact perversion of fact, a misrepresentation of the 
whole historical situation, to assert that a few men 
or a cunning minority, when the Federal Judiciary 
system was established, were hunting about for 
obstacles to put in the way of a hungry populace. 
.... If one knows anything at all of the 
thought and activity of past ages; of how men 
fought against tyrannical, arbitrary Government 
and sought to put restraint upon it in order that 
they might be free or have a larger share of liberty ; 
if he knows how philosophers have written of 
fundamental Law and the necessity of recognizing 
its full effect in the State; if he knows, in short, 
anything of the development of individual liberty, 
he will see in this power of the Courts not a con- 
spiracy against democracy but the culmination of 
a long struggle for liberty against arbitrary govern- 
ment.' ' * " The necessity of reciprocal checks in the 

1 Steps in American Democracy, by Andrew C. McLaugh- 
lin, 77. 



M Hamilton ffllere J&tvt Wo=Bav 55 

exercise of political power, by dividing and dis- 
tributing it into different depositaries, and con- 
stituting each the Guardian of the Public Weal 
against invasions by the others, has been evinced 
by experiments ancient and modern ; some of them 
in our country and under our own eyes," said 
Washington in his Farewell Address. 

The philosophy of the citizen who would emas- 
culate the Supreme Court and the Federal Judi- 
ciary and destroy their Constitutional power, solely 
because he dislikes some verdict of some Federal 
Court against which he happens to be in contem- 
porary conflict, is the philosophy of the Dutch 
farmer who would burn his barn to kill the rats in 
it. If there was propriety in the appellation of 
"Barnburners" in New York State, for a faction 
of the Democratic party in 1 847 which helped de- 
feat a party ticket which it could not control, it is 
distinctly congruous — and incisively pertinent — 
to use " Barnburners" as a suggestive brand for 
any school of politics which would seek " greater 
liberty" in America by gutting the Supreme 
Court's paramount Constitutional authority with- 
out which all Constitutional guaranty would dis- 
appear. If Hamilton were here to-day, the " Barn- 
burners" would be the first to feel his outraged 
wrath. 



Gtfje Supreme Court in Jpisitorp 

"Experience is the oracle of truth ; and where its responses 
are unequivocal, they ought to be conclusive and sacred." 
— The Federalist, No. 20. 

"Let us consult experience, the guide that ought always 
to be followed whenever it can be found." — The Federalist, 
No. 52. 

From the hour 1 in the Constitutional Conven- 
tion of 1787 when Luther Martin of Maryland 
moved the resolution which ultimately became the 
second clause in Article Six of the completed 
document and established the supremacy of the 
Constitution as the Nation's paramount authority, 
a zeal for liberty more ardent than enlightened 2 has 
gnawed ceaselessly at the vitals of this dominant 
Charter: and from that subsequent prophetic 
moment, 3 when President Washington signed the 
Law creating a Federal Judiciary to make Con- 
stitutional authority articulate, the power of the 
Supreme Court of the United States has been as 

1 July 17, 1787. 

2 This phrase is used in The Federalist, No. 26. 

3 September 24, 1789. 

56 



3f Hamilton Mere ?£ere ©o=®ap 57 

perplexed a subject of political and factional de- 
bate as it has been an indispensable sheet-anchor 
to the American Ship of State. 

These pages will not presume the dignity of a 
legalistic brief in sketching the history of these 
frictions and these essentialities. But an epitome 
of yesterday is necessary to judgment for to-day; 
and just as The Federalist constantly sought to 
illuminate the problems of that century with the 
beacon lights of historical experience, so our mod- 
ern understanding needs the advantage of running 
familiarity with the major episodes in the evolution 
of the body of Constitutional Law as it now exists. 

Efforts in 1922 to curb the Supreme Court of the 
United States and bring the Constitution within 
reach of the wolves of faction and the panthers of 
nullification are but old heresies in new mask. 
They are the same inflammatory declamations and 
unmeaning cavils. 1 The actors change, but the 
play is familiar. It has always been true that the 
Constitution without the Federal Judiciary would 
be " as much a mockery as a scabbard put into the 
hands of a soldier without a sword in it." 2 Yet 
the history of the United States is chaptered with 
strivings toward this mockery, and we live amid 

1 The Federalist, No. 23, created this phrase. 

2 Madison used this simile in 1832. 



58 M Hamilton Mere 3£ere ®o=2Sap 

their latest renaissance in the present uncertain 
epoch. But as an intelligent citizenship has never 
in the past yielded to these persuasions, 1 it is to be 
hoped and expected that a knowledge of these his- 
torical decisions in other crises will recommend a 
kindred constancy to us for whom the trail is blazed. 

There has been a variety of reasons used, in 
different decades, to justify attacks upon the su- 
preme Constitutional authority of the Federal Judi- 
ciary. Expediency rather than consistency usually 
has been consulted. But always the assault has 
been asserted as a "life and death" affair; and so 
frequently has hostility been supported temporarily 
by extremist measures which ultimately have 
withered, that there is ample occasion for modern 
confidence that no crises lie ahead which will be 
more fatal than crises which futilely have threat- 
ened in the past. 

The Constitution was but a few years old ere 
political faction, angered by Constitutional check- 
mate as pronounced by the Supreme Court, com- 
menced this long line of offensives upon the agency 
of its restraint. Americans proverbially are im- 
patient of barriers, even when they demark safety 
zones. Our characteristics in this respect are con- 

1 The Federalist, No. 22, would call them "syllogistic 
subtleties." 



M Hamilton Mere J^ere ®o=®aj> 59 

stant with the years. Thus, in 1793, Georgia flew 
into an ominous rage when the Court decided for 
the first time that a State is amenable to the juris- 
diction of the Supreme Court. 1 Georgia's House 
of Representatives passed a Bill 2 providing that 
any Federal Marshal or other person who executed 
any process issued by the Court in the case involved 
should be declared " guilty of felony and shall 
suffer death, without benefit of clergy, by being 
hanged/ ' This form of rebellion, however, did not 
persist; instead the Eleventh Amendment to the 
Constitution ultimately corrected the situation by 
lawful procedure. But the history of Court and 
Constitution was prophetically launched upon a 
turbulent career. 

When the Anti-Federalists, then known as Re- 
publicans, came into possession of Legislative and 
Executive dominion under Thomas Jefferson on 
March 4, 1801 , their avid appetites were restrained 
in numerous questionable directions by Supreme 
Court decisions — restraints which they wrongfully 
imputed to " politics" because all the Judges upon 
the Bench, appointed by Washington and Adams, 
were Federalists. 3 Setting a style which nearly a 

1 Chisholm v. Georgia, 2 Dallas, 419. 

2 November 21, 1793. 

3 The Federalist Party, organized under Hamilton, took 



60 M Hamilton ©Here 3£ere ®o=3Bap 

century and a quarter has not outlived, they re- 
sorted to "politics" for their reply. Hostile legisla- 
tion, inspired by Jefferson, repealed the Circuit Act 
of 1 80 1, by way of reprisal; and then, to postpone 
the submission of the Constitutionality of this repeal 
Act to the Supreme Court until the political power 
of Jefferson's administration could be strengthened, 
another Legislative subversion gerrymandered the 
Court calendar so as to enforce a Court adjourn- 
ment for fourteen months. Hamilton viewed this 
assault and precedent as "a vital blow to the 
Constitution. " It resulted in his suggestion for a 
Washington convention of Federalists to form "The 
Christian Constitutional Society" whose objects 
should be the defense of the Christian religion and 
the support of the Constitution. It also resulted 
in whetting Jeffersonian appetites for continuing 
anti-Court conquests. By 1803, impeachments of 
Justices were openly insinuated. James Monroe 
even proposed the repeal of the basic Law under 
which the Supreme Court was organized. 

In the midst of this guerilla warfare, the Court, 
now guided by the genius of John Marshall, pur- 
sued the even tenor of its way — without having 

its self-explanatory name, as did the Federalist Papers 
themselves, from the theory of "Federalism" which Hamil- 
ton believed the Constitution embraced. 




X 



0J 






- 

fa 



V) 




Cj 




* 




■M 




M 




i 




•o 




<v 




XJ 




09 






a 


3 


o 


«s 


-U-> 


-*— 




w 


3 


■v 


M 




■*H 


—« 


'X! 


o 


3 




O 


Q. 


-^ 


cd 


> 

8 


t4 


a 


10 


o 


Cfl 


-w 


<-• 


•c 




4> 


■o 


> 


c 


o 


« 


e 




c 


3 


« 


*-• 




-*-- 


G 


W 


o 


a 


■.n 




Q, 


w 


0) 


03 


o 


£ 


,a 


U 


•o 




c 


JO 


3 


3 


O 


Pi 


■4-4 




2 


0> 


w 


je 


c 


-*-■ 


ed 




s 


X 


a> 


-t-> 


-^ 


„ 


gd 


♦^ 


>^- 


0) 


w 


1-1 


CU 

> 


US 


'.J3 


•a 


3 


ed 


i-i 


o 


*-> 


w. 


w 


« 


G 
o 


M-i 


<J 


o 


c 


T3 




ed 


c/> 


fl> 


.* 


* 


V- 


4) 

05 


o 

is 


■*-» 


*-i 


*j 


<$ 


rt 


a> 


■«-» 


^ 


V 


(0 


a> 

u 


G 




o 


01 






."= 


"5 


E 


* 




g 


X-l 





o 




■•-> 


1) 


t/5 


u 


C 


a> 


s 




■*-• 


V) 


rt 


gd 


^ 


£ 




.^ 


Oj 


^» 


i-. 




Oi 




J3 



M Hamilton Were Here ®o=23ap 61 

been awed by power, or influenced by any passions 
except love for its country 1 — and soon confounded 
its political critics by decisions which demonstrated 
how free it was of the ulterior motives that inspired 
those who plotted its curb. These decisions, in 
physical results, were favorable to the purposes of 
Jefferson and his party. By sustaining the Con- 
stitutionality of the vindictive Circuit Court 
Repeal Act, which was declared to be within le- 
gitimate legislative province, it put the Constitution 
above politics, and there it has remained to this 
day. 2 It also emphasized the monitory wisdom of 
The Federalist* well worthy of modern recollection, 
that "the tendency of republican governments is 
to an aggrandizement of the Legislative at the 
expense of the other departments/ ' 

But the Courts most important decision, inci- 
dental to this vendetta between Federalists and 
Republicans, was in the famous case of Marbury 
v. Madison, establishing, once and for all, the power 
of the Court to adjudicate the validity of an Act of 
Congress — the fundamental decision in the Amer- 
ican system of Constitutional Law, 4 which for over 

1 The Federalist, No. 2, applied this phrase to the original 
Constitutional Convention. 

2 Stuart v. Laird, i Cranch, 299. 3 No. 49. 

4 The Supreme Court in United States History, by Charles 
Warren, i, 232. 



62 M Hamilton Were l&txt ®o=3Ba|> 

one hundred years has never seen successful con- 
troversion. This supremacy of the written Con- 
stitution over statute Law, and the authority of 
the Federal Judiciary to act as arbiter in case of 
conflict between the two is " wholly and exclusively 
American; it is America's original contribution to 
the science of Law." l It was fore-casted by The 
Federalist 2 which could not have expressed the 
doctrine more plainly than when it said: " When- 
ever a particular statute contravenes the Constitu- 
tion, it will be the duty of the Judiciary tribunals 
to adhere to the latter and disregard the former." 
Yet, thousands of advocates have urged to the 
contrary, and thousands of orators have pretended 
otherwise until the novel refinements of an errone- 
ous theory 3 have borne perennial fruit even in our 
most recent day. 

The Administration's hostility to the Supreme 
Court swept on without abatement. Marshall and 
Jefferson were no less antipodal than Hamilton and 
Jefferson. 4 Jefferson and his followers were intent 

1 Life of Marshall, by Albert J. Beveridge, iii, 142. 

2 No. 78. 

3 A phrase applied by The Federalist, No. 9. 

4 Jefferson wrote Monroe in 1800: ''Nothing should be 
spared to eradicate the spirit of Marshallism." Marshall 
wrote Hamilton in 1801: "To Mr. Jefferson I have felt 
almost insuperable objections; he will sap the fundamental 



M Hamilton IHere <fetxt ®o=3iai> 63 

upon humbling the Court and bending it to their 
political dominion. History differs as to motives; 
it cannot differ as to facts. The next result was the 
perfectly legal weapon of impeachment, aimed at 
Justice Chase, although an incompatible purpose — 
viz. to use impeachment as a "recall of judges" 
to bring the Bench into political sympathy with 
the Administration — inspired the trial. Justice 
Chase had been particularly frank — probably im- 
properly so, in view of his position — in his plain- 
spoken criticisms of the Jefferson trend, and he was 
marked as first victim in the new offensive. " Now 
we have caught the whale, let us have an eye to 
the shoal, "' said Jefferson, 1 who, according to 
William Plummer, Senator from New Hampshire, 
wanted "more pliant minds and accommodating 
opinions' ' in the Judiciary. But the "whale" 
escaped. The case against him was so palpably 
political that the Senate's impeachment Court 
refused to convict him. 

The Jacobins had to take another tack, this time 
a proposal to amend the Constitution, permitting 
the removal of all Federal Judges by the President 

principles of the Government." Marshall wrote Story in 
1 82 1 : " Every check on the wild impulse of the moment is a 
check of his own power, and Jefferson is unfriendly to the 
source from which it flows." 

1 Baltimore Federal Gazette, March 9, 1805. 



64 M Hamilton Mere J^ere ®o=Bap 

"on joint address of both Houses of Congress 
requesting the same." This failed on its first, 
and four subsequent attempts, between 1808 and 
18 16. The Jeffersonian incentive to it, however, 
was accentuated in the cases growing out of Aaron 
Burr's abortive adventures in south-western em- 
pire-building. Chief Justice Marshall ruled against 
Burr's liability for treason, as a Constitutional 
proposition. Jefferson and his partisans ascribed 
this verdict to Marshall's personal and partisan 
feeling. 1 But the historical truth would seem to be 
that Marshall had even greater cause for personal 
hatred of Burr because of his intrigues against 
Constitutionalism and his murder of Hamilton, 
than did Jefferson. The corollary truth, therefore, 
is that this episode — far from weakening judicative 
integrity — once more reflected the triumph of 
reason and Law over popular passion and personal 
prejudice. 2 

1 Warren in his Supreme Court in U. S. History, i, 315, 
says there was "considerable justification" for this view; 
and Professor Andrew C. McLaughlin in the American Bar 
Association Journal, 1921, vii, 233, concedes the possibility 
that "the case is a blemish on Marshall's career." 

2 "It was his [Jefferson's] weakness to think it safe for the 
friends of the People to make a 'blank paper' of the Con- 
stitution, but the very gate of revolution for those who were 
not Democrats." — A History of the American People, by 
Woodrow Wilson, iii, 183. 



3f Hamilton Mere 2£ere ®o=®ap 65 

Nothing can be said in defense of Jefferson's 
later action in causing his Attorney-General to 
circulate a proclamation denying the propriety of 
the judgment of a Federal Court in a matter to 
which the President was partisan. 1 Justice Wil- 
liam Johnson, himself a Jeffersonian appointee, 
thus described this untoward act : "If you are pre- 
pared, gentlemen, to waive the Government of the 
Laws and submit without repining to every error 
and encroachment of the several Departments of 
Government, avow it to your fellow citizens, and 
prevail on them to abolish the Constitution, or get 
into office a feeble and submissive judiciary.' ' It 
is the Republic's fortune that there always have 
been sturdy leaders thus to stand against subtle 
Constitutional assaults which seek, by indirection, 
to accomplish a measure of destruction which the 
Constitution itself can never license. Nor have we 
outgrown the need for sustained defenses in this 
direction. It is with us even now. The Federalist 2 
foresaw the danger of a speak-easy radicalism which 
would find little difficulty to " inflame the passions 
of the unthinking and confirm the prejudices of the 
misthinking" ; but it equally foresaw that ascend- 
ancy for this school of thought would spell the 

1 Ex parte Gilchrist, 5 Hughes, I. 

2 No. 41. 



66 M Hamilton Mere J^ere ^o=®ap 

beginning of the Constitution's end. We need to 
face the naked truth as candidly to-day as did the 
Fathers in their creative generation. 

Massachusetts and Connecticut temporarily be- 
came proponents of State's Rights and of a State's 
prerogative to decide for itself upon Constitutional 
questions, in 1808 when the famous "Embargo" 
threatened their commerce. 1 Pennsylvania carried 
similar selfishness to the point of armed rebellion 
shortly afterward. Refusing to submit to a judg- 
ment involving the liquidation of an ancient debt 2 
the State Legislature passed a Law directing its offi- 
cers to disregard ' ' any process whatever issued out 
of any Federal Court." In 1809, State troops car- 
ried this insurrection into physical effect. A Fed- 
eral grand jury promptly indicted their commander. 
President Madison, then only a few months in 
office, refused to undertake a composition of the 

1 Charles Warren points out in his Supreme Court in 
U. S. History, 1, 388: "Throughout American history, de- 
votion to State's Rights and opposition to the jurisdiction 
of the Federal Government and the Federal Judiciary, 
whether in the South or in the North, has been based not 
so much on dogmatic, political theories or beliefs, as upon 
the particular economic, political or social legislation which 
the decisions of the Court happened to sustain or over- 
throw." 

2 The climax to this litigation came in U. S. v. Peters, 
5 Cranch, 115. 



M Hamilton Mere ©ere ®o=33ap 67 

breach. "The Executive," said he, 1 "is not only 
unauthorized to prevent the execution of a decree 
sanctioned by the Supreme Court of the United 
States, but is expressly enjoined by statute, to 
carry into effect any such decree, where opposition 
may be made to it." The defendants were tried, 
convicted and sentenced to fine and imprisonment. 2 
Justice Bushrod Washington, far from yielding 
to impassioned clamor sweeping Pennsylvania or to 
counsels of fear, did not pass this sentence until he 
had adjourned his Philadelphia Court to the largest 
assembly hall in the city so that, as he said, the 
"citizens" who "manifest a deep interest in the 
results" could "witness the administration of the 
justice of the country, to which all men, great and 
small, are alike bound to submit.' ' A sublimer 
Constitutional courage would be difficult to im- 
agine. While it typifies the travail the Constitu- 
tion has had to outlive, equally it typifies the 
undaunted vigor and independence of the men 
who, occupying the Supreme Court Bench, have 
put the administration of Federal Law beyond 
reproach. 

On February 2, 18 19, the Supreme Court de- 

1 April 13, 1809. 

2 They were later pardoned when excitement had died 
down. 



68 3f Hamilton Witvt l&txt ®o=23ap 

cided the famous V Dartmouth College Case" 1 
forbidding impairment, by State action, of the 
obligation of contracts — the " contract," in this in- 
stance, being a private corporate charter. By this 
finding, the development of American Law em- 
barked upon a new epoch. 2 

A few weeks later came the great pronouncement 
which established the powerful doctrine of "im- 
plied Constitutional powers" 3 and put "the most 
formidable weapon into the armory of the Con- 
stitution." 4 It was the doctrine of Governmental 
self-sufficiency which Hamilton had unanswerably 
apostrophized in the whole fabric of his Federalist 
papers, and which he had specifically developed in 
convincing President Washington of the Govern- 
ment's power to charter a National Bank of the 
United States. 5 Chief Justice Marshall but para- 

1 Dartmouth College v. Woodward, 4 Wheat., 518. 

2 Sir Henry Maine in his Popular Government, 1885, p. 
247, says this decision, pursuant to Daniel Webster's tre- 
mendous and oft-quoted argument, proved to be "the bul- 
wark of American individualism against democratic impa- 
tience and socialistic fantasy." 

3 McCullough v. Maryland, 4 Wheat., 316. 

4 Life of Hamilton, by Henry Cabot Lodge. 

s ' ' The means ought to be apportioned to the ends ; the 
persons, from whose agency the attainment of any end is 
expected, ought to possess the means by which it is to be 
attained." Federalist, No. 22. "Not to confer a degree of 
power commensurate to the end, would be to violate the 



M Hamilton Mere 3£ere ®o=33ap 69 

phrased Hamilton when his decision in this case 
said: "Let the end be legitimate, let it be within 
the scope of the Constitution, and all means which 
are appropriate, which are plainly adapted to that 
end, which are not prohibited, but consist with the 
letter and spirit of the Constitution are Constitu- 
tional." 1 Not only because the decision startled 

most obvious rules of prudence and propriety, and improvi- 
dently to trust the great interests of the nation to hands 
which are disabled from managing them with vigour and 
success." Federalist, No. 22. "A power equal to every pos- 
sible contingency must exist somewhere in the government." 
Federalist, No. 26. "A government ought to contain in it- 
self every power requisite to the full accomplishment of the 
objects committed to its care, and to the complete execution 
of the trusts for which it is responsible, free from every 
other control but a regard to the public good and to the 
sense of the people." Federalist, No. 31. Quoting the An- 
napolis Convention Resolutions demanding the Phila- 
delphia Convention "to devise such further provisions as 
shall appear to them necessary to render the Constitution 
of the federal government adequate to the exigencies of the 
Union." Also quoting the Congressional resolution, calling 
the Philadelphia convention to provide "means of establish- 
ing a firm national government" and to "render the federal 
Constitution adequate to the exigencies of government and 
the preservation of the Union." Federalist, No. 40. "Its 
propriety rests upon the evidence of this plain proposition, 
that EVERY GOVERNMENT OUGHT TO CONTAIN 
IN ITSELF THE MEANS OF ITS OWN PRESERVA- 
TION." Federalist, No. 59. 

1 The Greatest American, Hamilton, by Vandenberg, 229. 



70 3f Hamilton Mere Here ®o=3@ap 

the loose constructionist who looked askance at 
growing Constitutional authority, but more par- 
ticularly because it upheld the Constitutionality of 
the Bank of the United States — stormy petrel of 
American politics through many crucial years — it 
re-aroused a veritable hurricane of hostile reaction. 
The decision itself invalidated Maryland's effort 
to tax the Bank out of existence in that State, a 
recourse widely indulged by other States by its 
political opponents. Virginia promptly took up 
the old cudgels in a new demand for a new and 
different tribunal to adjudicate questions involving 
State and Federal powers. 1 Pennsylvania, sup- 
ported by the Legislatures of several other States, 
asked a Constitutional Amendment confining the 
Bank to the District of Columbia. 2 

Throughout these maneuvers, of course, persist- 
ent detractors were leaving no slur upon the Court 
itself unuttered. But it remained for Ohio to 
provide the hostile action which brought the disease 
to crisis, and, therefore, to cure. Despite the Su- 

1 " It is to be noted that this antagonism to the Court arose 
NOT from its exercise of its powers to hold an Act of Con- 
gress invalid, but from its failure to do so." — Supreme Court 
in U. S. History, by Charles Warren, i, 514. 

2 Senator Logan of Kentucky unsuccessfully moved for 
such an Amendment by Senate Resolution, December 28, 
1819. 



M Hamilton Mere 2£ere ®o=Siap 71 

preme Court's ruling in the Maryland case, Ohio 
proceeded to collect an annual tax of $50,000 on 
each Bank Branch in that commonwealth, and, 
violating a temporary injunction obtained by the 
Bank, forcibly entered its vaults and sequestered 
jf 1 20,475. Some gantlet the vindication of Con- 
stitutional authority has had to run in the United 
States! The Bank countered with legal process 
which committed the State Treasurer to prison 
when he refused to restore the funds, and which 
reclaimed the money as forcibly as it had been 
first appropriated. The Ohio Legislature, aroused 
to pyramiding passion, passed a statute com- 
pletely outlawing the Bank 1 and memorialized 
other Legislatures to join it in embracing the 
familiar doctrines of State supremacy over Con- 
stitutional questions, as enunciated in the Ken- 
tucky and Virginia Resolutions of 1798-99. But 
since the resolutions received scant external en- 
couragement, and the Courts proceeded relent- 
lessly to protect their power, and the return of 
business prosperity ameliorated prejudice against 
the Bank, the case was essentially a dead issue 
when finally decided against Ohio, March 19, 
1824. 

Meanwhile, always pulling up-stream against 

1 January 29, 1821. 



72 M Hamilton Mere Here ®o=2Sap 

strong currents of prejudice and opposition, the 
Supreme Court's decisions had been building new 
Nationalistic strength for the Constitution in other 
directions. One verdict on March 3, 1821, fixed 
Federal jurisdiction, under the Constitution, in all 
criminal cases arising in State Courts in which a 
Federal question is involved 1 ; another, on March 
2, 1824, established the broad extent of Federal 
power over internal commerce 2 — an "opinion 
which has done more to knit the American people 
into an indivisible Nation than any other one force 
in our history, excepting only war." 3 But it must 
be remembered that then, as now, there were puis- 
sant factions which hoped the "knitters" would 
"drop their stitch." Both decisions excited the 
usual animadversions from those who were jealous 
of the Constitution and the Court. Kentucky's 
proverbial anger particularly rekindled under a 
series of contemporary decisions invalidating the 
State's land and debtor laws. 4 The usual Legisla- 
tive resolutions advocated a curb on the Judiciary; 
threats of personal violence were made against 
Judges; impeachments were unsuccessfully at- 

1 Cohen v. Virginia, 6 Wheat., 264. 

2 Gibbons v. Ogden, 9 Wheat., 1. 

3 Life of Marshall, by Albert J. Beveridge, iv, 429. 

4 Green v. Biddle, 8 Wheat., 1. 



M Hamilton Were J&zvt ®o=Bap 73 

tempted; and the use of physical resistance was 
intimated but abjured. Congress, too, was be- 
sieged with various proposals looking toward the 
Judiciary's emasculation. These ranged from a 
proposed Constitutional Amendment giving the 
Senate appellate jurisdiction in cases involving 
State's Rights 1 to a Bill requiring the concur- 
rence of five of the seven Justices to invalidate 
a State Law. 2 Thus, again, it appears that the 
history of sturdy Constitutional Law and prece- 
dent has been a constant and unremitting battle 
— an everlasting appeal from " Philip drunk" to 
"Philip sober"; and since human nature is quite 
the same in every age, it is not surprising that 
modern generations should not find themselves 
immune to kindred disturbances. But all efforts 
to hobble a vigorous, independent, effective Federal 
Judiciary failed in this era when the Republic wore 
its swaddling clothes — ''an amazing tribute to the 
popular confidence in that tribunal" 3 — and this 
record of yesterday is wholesome admonition for us 
in the flux of to-day and the recurrent uncertainties 
of to-morrow. 

1 Offered by Senator Richard M. Johnson of Kentucky, 
December 12, 1821. 

2 Reported March II, 1824, by Senator Martin Van 
Buren of New York. 

3 Supreme Courtin U. S. History, by Charles Warren, ii, 131. 



74 3f Hamilton Were 5iere ®o»3Bap 

The period of Daniel Webster's greatest service 
to the Union now came into full fruit. While 
Webster had served as counsel in many of the 
paramount cases through which the Supreme 
Court, usually favoring his arguments, had con- 
solidated the Constitution's victories, he now 
threw his superb talents into a Congressional ex- 
position of the Supreme Court as an indispensable 
head-stone in the American system of Government. 
On January 26 and 27, 1830, he uttered his im- 
mortal "Reply to Hayne" 1 and sounded not only 
the key-note of American Union, but also an unan- 
swerable defense of the functions and the posture 
of the American Judiciary. He brought Hamil- 
ton's Federalist down to his time, amplified it to 
suit expanded necessity, and builded the intrench- 
ments behind which Constitutionalism was des- 
tined to save its life. Through three subsequent 
months a fateful debate monopolized the attention 
and the prejudices of Congress. The Court did 
not lack for other able knights to bear a lance in the 
battle for its life. Senator David Barton of Mis- 
souri deplored the ease with which " the Court may 

1 A speech by Robert Y. Hayne of South Carolina, Janu- 
ary 19 and 25, 1830, supported Calhoun's doctrine of "nulli- 
fication" — the right of a State to veto Law deemed by a State 
to be unconstitutional but which had been held valid by the 
Court. 



3f Hamilton Mere Here ®o=Bap 75 

be rendered odious by making it a topic of election- 
eering discussion' ' and of " popular declamation." 
Senator John M. Clayton of Delaware cried out 
that there was no other recourse "to save us from 
the horrors of anarchy than the Supreme Court." 
"The crisis of our Constitution, is now upon us," 
wrote Marshall to Justice Story; "a strong dis- 
pensation to prostrate the Judiciary has shown it- 
self." But Webster was the Giant who struck the 
most dynamic blows in rallying public confidence 
to sustain the defenses of the Constitution. "No 
one can overestimate the potent influence in main- 
taining such confidence which is to be attributed to 
Webster's soul-stirring appeal in behalf of the 
Union and judicial supremacy"; and history has 
confirmed the contemporary view of his great 
speech — that "if his name were unwritten in the 
Legislative and Judicial history of the country, he 
has now inscribed it upon a monument, in letters 
so legible and so durable that it will be read and 
remembered, as long as there is an American to 
read and rejoice in the glory of his country." 1 

The doctrine of nullification, denying every 
basis urged by The Federalist for imperishable 
Union, now graduated from theory to practice; 

1 The Supreme Court in U. S. History, by Charles Warren. 
11. 188. 



76 M Hamilton JHere l&ttt Co-2Bap 

and the result was to modify the impatient views 
of many who upheld it in the abstract, but who 
were chastened in the awful presence of the con- 
crete. 1 Further, the new crisis wrought an ulti- 
mate coalition of Webster, Marshall and Andrew 
Jackson in implacable support of the Constitution 
and the Court — as powerful a trinity as ever bat- 
tled for a desperately important cause. 2 Georgia 

1 The Federalist, No. 15, said: "I have unfolded to you a 
complication of dangers to which you would be exposed, 
should you permit that sacred knot which binds the people 
of America together to be severed or dissolved by ambition 
or by avarice, by jealousy or by misrepresentation." From 
one end to the other, The Federalist pleaded this fundament, 
lest the country be "numbered among the melancholy 
victims of misguided councils." — No. 14. 

2 Webster once said to Thurlow Weed that "Jackson has a 
violent temper which leads him often to hasty conclusions," 
but "he is an honest and upright man who does what he 
thinks is right, and does it with all his might; his patriotism 
is no more to be questioned than that of Washington." 
Though he violently disagreed with Webster and Marshall 
in most of their political beliefs, he was an unsurrendering 
friend to the idea of indivisible Union. It is typically 
related of him that after Harvard had conferred its coveted 
degree of Doctor of Laws upon him, as he was concluding 
his speech, an irreverent auditor shouted out: "You must 
give 'em a little Latin, Doctor." No whit abashed, the 
grizzled old Hickory solemnly doffed his hat, stepped for- 
ward to the front of the platform and uttered these words, 
fraught with meaning for all: "E Pluribus Unum, my 
friends, sine qua non!" He thus spoke volumes in a phrase 
just as The Federalist, No. 7, had done when it declared that 



M Hamilton Mere Here ®o=2Bap 77 

questioned the right of the Supreme Court to order 
it to defend a case testing its exclusion of Cherokee 
Indians from Georgia lands guaranteed to the 
Cherokee Nation by the " Treaty of 1791"; and, 
before the suit was begun, it further aggravated 
the situation by hanging an Indian, for murder, 
despite a writ of error issued against it by the 
Supreme Court. This was practical nullification. 
It recrystallized the great issue which had been 
throbbing through our history for years, and re- 
newed the mobilized attack of those who believed 
in Constitutional sabotage. 1 James Madison, a 
patriarch of the Constitution, said at the time: 
11 The jurisdiction claimed for the Federal Judiciary 
is truly the only defensive armor of the Federal 
Government, or rather for the Constitution and the 
Laws of the United States ; strip it of that armor, 
and the door is wide open for nullification, anarchy 
and convulsion." The Georgia Legislature voted 
defiance. In the absence of any appearance on 

" ' Divide et Impera' must be the motto of every nation that 
either hates or fears us." N. Y. Times Magazine, September 
3, 1922. 

1 One contemporary Congressional effort to strip the 
Court of jurisdiction over State Laws was defeated January 
29, 1 831, in the House by a vote of 158 to 51 ; and another 
effort to limit the term of Federal Judges was defeated by a 
vote of 115 to 61. 



78 M Hamilton Were l^ere ©o=3Bap 

behalf of the State, the Supreme Court decided, 
favorably to Georgia, that it lacked jurisdiction in 
this specific instance, although it did not hesitate 
to observe that all the humanities were with the 
Indians. But the problem promptly recurred in 
new form when another writ of error commanded 
Georgia's appearance in the Supreme Court be- 
cause of the imprisonment of two missionaries to 
the Cherokees. Again the Governor scorned the 
summons. Again the State Legislature voted 
resistance. On March 3, 1832, the case was decided 
against Georgia and the missionaries were ordered 
released. The order was ignored. The eyes of 
destiny turned quizzically toward President Jack- 
son, whose uncompromising antipathy to a renewal 
of the Charter of the Bank of the United States, 
was interpreted by partisan foes as the harbinger 
of Executive refusal to support the Court in any of 
its Nationalistic tendencies. 

When Georgia's sullen indiscretion was followed 
by States' Rights rumblings in New York 1 and in 
Massachusetts 2 ; and when the spirit of the times 

1 Incidental to the cases of New Jersey v. New York, 5 
Peters, 284. 

2 Incidental to the "Warren Bridge Case" in which the 
Massachusetts Democratic Convention of 1831 said the 
"Supreme Court has no more Constitutional right to 
meddle than the Court of King's Bench." 



M Hamilton Were Jfyttt ®o=3@ai> 79 

flamed into South Carolina's adoption of its Nulli- 
fication Ordinance on November 24, 1832, denying 
all State jurisdiction to the Supreme Court, Presi- 
dent Jackson struck for Union and struck with a 
bludgeon. He called treason by its name. He at 
once issued his celebrated Proclamation of Decem- 
ber 10, 1832, and recommended to Congress that it 
clothe the Courts with power adequate to deal with 
rebellion against them. The " Force Bill" fol- 
lowed; and, with it, a National awakening to the 
need for the stern support of the supremacy of the 
Constitution as interpreted by the Supreme Court. 
Jackson served a mighty emergency, nobly, cour- 
ageously and well. 1 Georgia realized that the 
President's insistence upon the supremacy of 
National authority in South Carolina meant that 
he would strike down disobedience in any other 
State. It corfiposed its wrath and pardoned the 

1 Jackson often has been quoted as asserting that he, as 
an Executive officer, had a right to judge for himself whether 
an Act of Congress was Constitutional, regardless of the 
Supreme Court; but Chief Justice Taney wrote that no 
"intelligent man" could thus misconstrue the Jackson 
theory — viz. that he could follow his own judgment on a 
Constitutional question when a Law was in the process of 
making and while he participated in its creation, but that 
this option disappeared when once a Law was completed. 
Jackson was a "friend in need" to the cause of a solidified 
Union, and this point deserves emphasis. 



80 M Hamilton Were ^ere ©o=Bap 

missionaries. Another rampart was added to the 
defenses of Constitutional Laws as charted by The 
Federalist and as chaptered by the Supreme Court. 

Chief Justice Marshall died on July 6, 1835, 
rightly mourned as one of the greatest and most 
useful Americans who ever lived to dedicate a 
matchless brain and courage to the institutions of 
ordered liberty. " Providence grants such men to 
the human family only on great occasions to accom- 
plish its own great end," said Associate Justice 
Story. Roger Taney was Marshall's successor. At 
first a tendency to let down the bars of strict Na- 
tional construction of the Constitution was feared ; 
but there proved to be no real relaxation in the 
determination of the Court to uphold the National 
dignity and sovereignty in any case where it was 
really attacked; in fact, in the succeeding years, 
Chief Justice Taney went even farther than Mar- 
shall had been willing to go in extending the juris- 
diction of the Federal Courts. 1 

Since the purpose of this chapter is confined to a 
quick inventory of basic popular frictions involving 
the Court's development of power — the lineal ante- 
cedents of modern frictions in kind — many momen- 
tous Court decisions at this time must lie outside 

1 Supreme Court in U. S. History, by Charles Warren, ii, 
307. 



M Hamilton Here ©ere ®o=ISap 81 

our jurisdiction. But the dark climax in these 
frictions, whose fires burned on the altars of aboli- 
tion and of slavery, one as uncompromising as the 
other in its impassioned zeals, cast its shadows 
ahead and enveloped every event. History wrote 
with rushing pen. In the 1841 term, the Court 
faced, but was able to avoid, the problem which 
later was to precipitate rebellion in the Dred Scott 
case. 1 In 1842 the curse recurred 2 ; and this time 
the Court unanimously held that the power of 
Congress over fugitive slaves was exclusive. The 
North complained that this did not permit it to be 
sufficiently drastic, through the medium of State 
statutes, in protecting fugitives; indeed the North 
was soon to become as violently insistent upon 
"States' Rights, " to fit this emergency, as ever was 
the South. Meanwhile, the South complained that 
the decision invaded " States' Rights" and did not 
permit it adequate sovereignty to hold slaves in 
leash. It was the irrepressible conflict. Justice 
Story, in the midst of this inscrutable contact, 
said: "I shall never hesitate to do my duty as a 
Judge under the Constitution and Laws of the 
United States, be the consequences what they may; 
that Constitution I have sworn to support, and I 

1 Groves v. Slaughter, 15 Pet., 449. 

2 Prigg v. Pennsylvania, 16 Pet., 539. 

6 



82 M Hamilton Were Here tEchJISap 

cannot forget or repudiate my obligations at 
pleasure." 1 The final result of this decision was to 
force a new and stronger Federal fugitive slave law 
in 1850, and thus to hasten the fatal breach. 

The deep irritations of the time found a ready- 
target in the Supreme Court. The old arguments, 
re-dressed, moved into renewed activity again. 
James Buchanan of Pennsylvania again insisted 
that the Courts had no business over-riding Con- 
gress: "I would never hold myself bound by the 
decision of the Judiciary, whilst acting in a Legis- 
tive character," said he. 2 On the other hand, the 
New York Herald declared: "The Supreme Court 
is our last bulwark, our fortress, our lock and tower 
of defense when all else fails." Justice Woodbury, 
announcing a decision upholding the Constitution- 
ality of the fugitive slave law of 1 793 s said : ' ' This 
Court has no alternative, while they exist, but to 
stand by the Constitution and Laws, with fidelity 
to their duties and their oaths; their path is a 

1 Life and Letters of Story, by William Waldo Story, 1851, 

", 430- 

2 In his inaugural address, March 4, 1857, President 
Buchanan subsequently said, referring to a prospective 
decision in the Dred Scott case by the Supreme Court: "To 
their decision, in common with all good citizens, I shall 
cheerfully submit, whatever this may be." A totally differ- 
ent attitude. 

3 Jones v. Van Zandt, 5 Howard, 215. 



M Hamilton Mere Ifytxt ®o=®ap 83 

straight and narrow one, to go where the Constitu- 
tion and Laws lead, and not to break both by 
traveling without or beyond them." Justice Mc- 
Lean, himself an implacable abolitionist, warned 
the anti-slavery forces not to go too far. " It is an 
easy matter," said he, "to denounce the action of 
any Court who may differ from our own views, and 
thereby lessen the public confidence in such Court." 
Important admonitions, all these — and absolutely 
applicable, in changed circumstance, but not in 
changed necessity, to conditions in America to-day 
and to-morrow! "As a lover of the Union, I am 
willing to abide the Supreme Court's solemn de- 
cision," declared Congressman Richard W. Thomp- 
son of Indiana; "nothing can be more dangerous to 
our peace and prosperity as a Nation than these 
repeated attempts to appeal from the decision of 
our highest Courts to the tribunals of party and of 
faction ; I hold that man to be enemy to the public 
welfare and the public peace, who, for political 
party purposes, seeks to array popular prejudice 
against the Constitution and Law, thus settled and 
fixed." 1 

But, over and against these views, Charles 
Sumner, in the Senate of 1852, declared that while 
he had respect for the Supreme Court, he declined 

1 30th Congress, 2d Session. 



84 3ff Hamilton Mere Ifatxz ®o=®ap 

to acknowledge its authority as binding upon Con- 
gress; and, meanwhile, several States suited their 
actions to their equally hostile motives. In Ohio 
a State Court denied the validity of the appellate 
jurisdiction of the Federal Supreme Court. 1 In 
California a State Court refused acquiescence in the 
Supreme Court's jurisdiction 2 — although the Cali- 
fornia Legislature promptly cured the insurrection 
by statute. In Wisconsin, a State Court actually 
released a prisoner, convicted in Federal Court. 3 
The entire North, seemingly, was tinctured with the 
belief that the Supreme Court was the " citadel of 
slavery' ' — when, as a matter of retrospect, we know 
it was but the " citadel" of a written Constitution 
and the Laws pursuant thereto. So imminent was 
trouble that a leading Law 4 magazine called the 
country to a contemplation of its dangers. "Ad- 
mit that the Federal Judiciary may in its time 
have been guilty of error, that it has occasionally 
sought to wield more power than was safe, that it is 
as fallible as every other human institution. Yet 
it has been and is a vast agency for good; it has 
averted many a storm which threatened our peace, 

1 Stunt v. Ohio, 3 Ohio Decisions Reprint, 362. 

2 Johnson v. Gordon, 4 Calif., 368. 

3 In re Booth, 3 Wisconsin, 1, 49. 

4 The American Law Register, January, 1856. 



M Hamilton Here J^ere ^o=ISap 85 

and has lent its powerful aid in uniting us together 
in the bonds of Law and Justice. Its very existence 
has proved a beacon of safety. And now, when the 
black cloud is again on the horizon, when the 
trembling of the earth and the stillness of the air 
are prophetic to our fears, and we turn to it in- 
stinctively for protection — let us ask ourselves, with 
all its imagined faults, what is there that can re- 
place it? Strip it of its power, and what shall we 
get in exchange? Discord and confusion, statutes 
without obedience, Courts without authority, an 
anarchy of principles, and a chaos of decisions, till 
all Law at last shall be extinguished by an appeal 
to arms ! ' ' Noble apostrophe ! Sounded in the very 
mold of The Federalist which pleaded, years be- 
fore, that Americans should solemnly compare what 
they might believe to be the Constitution's dis- 
advantages, with the lethally greater disadvantages 
which would attach to the Constitution's defeat. ■ 
Well may the challenge give us a pause in 1923 
which was impossible in 1856! 

The crashing climax to nearly ten years of ac- 
cumulating abolitionist propaganda against the 

1 The Federalist, No. 38: " It is a matter both of wonder 
and regret that those who raise so many objections against 
the new Constitution, should never call to mind the defects 
of that which is to be exchanged for it." 



86 3f Hamilton Witvt J&txt ®o=®ap 

Court, came with the decision in the case of Dred 
Scott, a Missouri slave for whom freedom was 
claimed when his master temporarily took him into 
free territory. The case was decided March 6, 
1857. T Six Justices concurred in holding that a 
negro could not be a citizen, also that Congress had 
no power to exclude slavery from the territories. 
Three Justices dissented in one way or another. 
The effect upon the North was electric. Profound 
anti-slavery zeal and anti-Court prejudice flamed 
as under the influence of oil poured upon a smolder- 
ing conflagration. In the calm light of history, it 
might be said that criticism of the Court was justi- 
fied only on the theory that the Court should have 
pronounced the Law as it ought to have been — and 
as subsequently made by Constitutional Amend- 
ment — rather than as it was. But those who took 
this view — and those who take it in relation to the 
problems and the Court to-day — neglect to realize 
that if the Court shall ever thus proceed, the Court 
will be assuming Legislative, in addition to Judicial, 
functions, and thus it will be guilty of invading the 
prerogatives of another independent branch of the 
Government. These critics, at best too jealous of 
the Court, recommend to it a usurpation which, if 
accomplished, they themselves would be the first 
1 Dred Scott v. Sanford, 9 Howard, 393. 



M Hamilton Mere J^ere ®o=®ap 87 

and the loudest to condemn. Nevertheless, there 
are many able legal historians to-day who condemn 
the Dred Scott decision as a "gross abuse of 
trust/' ' Certainly they are at least correct to the 
extent of reflecting a contemporary view so rabid 
that the country's faith was frightfully weakened 
and the reputation of the Court was flung into 
fifteen years of jeopardy. 

Indeed, four months after Chief Justice Taney's 
death, a Bill to place his bust in the Supreme Court 
room was lost 2 amid vindictive anathema. Sena- 
tor Henry Wilson of Massachusetts in this debate 
called the Dred Scott decision "the greatest crime 
in the judicial annals of the Republic" and said 
Taney was "recreant to liberty and humanity." 
The factious spirit of the times, inspired by a 
mighty moral impulse, moved Northern abolition- 
ists to these extremes in the face of any policies 
which did not wholly and immediately support 
their exalted purpose to wipe the curse of slavery 
from the Republic at any cost. Webster had faced 
these storms in 1850 because he assessed an even 
greater value to the preservation of Constitutional 
Union than to the extermination of serfdom. In 

1 The Supreme Court in United States History, by Charles 
Warren, iii, 38. 

2 It subsequently passed on January 29, 1874. 



88 M Hamilton Mere J&tvt ©o^ap 

this he but anticipated the posture of Lincoln 
Yet, despite his pronounced anti-slavery views and 
his impeccable record of patriotic service, he was 
thunderously maligned because he was unwilling 
to help precipitate the Rebellion a decade before it 
could have been won for Liberty and Union. * It 
is not surprising, if the superb Webster, long idol- 
ized in the North for his exalted leadership, was 
the victim of the time's impatience, that the 
Supreme Court — less blessed with spectacular op- 
portunities to win mass applause — should have 
been a shining target for contumacious impetuosity : 
but as time has vindicated the wisdom and the 
motives of the one, so has it, to large degree, the 
other. 

Hot Northern counsels recommended defiance 
to the Dred Scott decision. Typical of journalistic 
wrath, The New York Independent 2 said: "If the 
people obey this decision, they disobey God." 
On the other hand, sober warnings were sounded 
like the admonition of The New York Commercial 
Advertiser which, while deploring the Court's 

1 Dr. Frank Bergen, in a privately circulated work on 
Webster, Yale University Press, June, 191 8, says of Webster 
at this time: "An agitator may well demand what is pos- 
sible at some time ; but a statesman, in order to accomplish 
anything, must consent to what is presently possible." 

2 December 17, 1857. 



M Hamilton Mere Ifatxt ®o=23ap 89 

conclusions, condemned its incontinent critics: 
"Such a course, though it may be congenial with 
our temper at the moment, is sadly perilous to the 
common weal, the interest of freedom and free 
Government being always best upheld by maintain- 
ing respect for the officers of Government, particu- 
larly those of the Judiciary/ ' The Washington 
Union 1 added that " fanaticism ceases to be a 
formidable enemy when it seeks to measure 
strength with the Union-loving spirit of the people, 
sustained or confirmed by the great arbiter of 
Constitutional questions.' ' 

But America was marked for the Rebellion. If 
the Court's decision figured in it — and certainly it 
was the storm center of the fateful debates which 
now rushed Congress to the abyss — it figured as an 
excuse rather than as a reason. Slavery and nulli- 
fication themselves were the real dynamite. North- 
ern Republicans suddenly embraced the ancient 
doctrines of Jefferson as to a curbed Court, only 
to discard these doctrines again when the South 
used them to recommend State sovereignty and to 
license secession. Brave words were those of 
George E. Pugh of Ohio, who, though disagreeing 
with the Dred Scott verdict, said: " Whatever may 
be my opinion as an individual, both as a Senator 

1 March II, 1857. 



90 M Hamilton Were 3£ere ©o=2Sap 

and a citizen, the judgment of the Court must be 
carried into effect; we cannot live an hour under 
any other doctrine." Lincoln's view was the 
correct one; and it is important that this view be 
made plain, because in recent years, Lincoln has 
been erroneously quoted as an authority for deny- 
ing the Supreme Court's right to pass upon the 
Constitutionality of Acts of Congress. Two years 
before his Douglas debates, speaking of slavery and 
the Constitution 1 he said: "The Supreme Court 
of the United States is the tribunal to decide such a 
question, and we will submit to its decisions." 
Later 2 he said: "We believe in obedience to, and 
respect for, the Judicial department of Govern- 
ment. We think its decisions on Constitutional 
questions, when fully settled, should control not 
only the particular cases decided, but the general 
policies of the country, subject to be disturbed only 
by Amendments of the Constitution, as provided 
in that instrument itself. More than this would be 
revolution. We think the Dred Scott decision is 
erroneous. We know the Court that made it has 
often over-ruled its own decisions, and we shall do 
what we can to have it over-rule this. But we offer 
no resistance to it . " He added in his first inaugural 

1 Galena, Illinois, August I, 1856. 

2 Springfield, Illinois, June 26, 1858. 



3)f Hamilton Nitvc H)tvc &o=23ap 91 

message in 1861 that the evil of possible error in the 
Court's conclusions "can better be borne than 
could the evils of a different practice/' Lincoln 
knew the philosophy of The Federalist 1 which 
reminded America, upon another occasion, that 
"the injury which may possibly be done by defeat- 
ing a few good laws will be amply compensated by 
the advantage of preventing a number of bad 
ones." We need to know both Lincoln and The 

leraUst to-day. 

It is unnecessary, and outside our purpose, to 
detail the heroic story of the Civil War — a house- 
hold legend in America. Our objective is reached 
by touching the high-lights of history as they have 
exemplified the key-stone status of the Supreme 
Court in the preservation of the Constitution and 
the conflict through which the Court has persevered 
in its indescribably great and essential function as 
the Compass of the Constitution, steady alike in 
calm and storm. Suffice it to say that Lincoln 

[Uently found it necessary, in the face of mili- 
tary exigency, to go outside the Constitution in 
pursuit of powers equal to the crises he faced, and 
that Chief Justice Taney did not hesitate, in one 
such circumstance, to question the legality of the 
ttl of the writ of habeas corpus by his 

'No 7> 



92 3ff Hamilton Mere J&txz ®o=2Sap 

famous decision in "Ex Parte Merryman. ,, Again 
he was stormily condemned as a friend to rebels; 
but his doctrines were wholly vindicated four years 
later when the Court, composed largely of Repub- 
licans appointed by Lincoln, unanimously joined 
in denouncing the Executive establishment of 
military tribunals in States where the civil Courts 
were open. 1 The latter decision was delivered by 
Justice David Davis, Lincoln's personal friend, who 
said : ' ' The Constitution of the United States is a 
Law for rulers and people, equally in war and in 
peace, and covers with the shield of its protection 
all classes of men, at all times, and under all cir- 
cumstances." That this decision, which has since 
been recognized by all men as the palladium of the 
rights of the individual, should have been so gener- 
ally compared, at the time of its rendition, with the 
Dred Scott case is a striking commentary on the 
impassioned political conditions of the era. 2 Con- 
gressional reprisals again were hotly offered. One 
program suggested the enlargement of the Court so 
that it might be "packed" with new Judges who 
were known to favor Reconstruction under mili- 
tary jurisdiction. 3 Another proposed a Constitu- 

1 Ex Parte Milligan, 4 Wall, 2. 

2 The Supreme Court in United States History, by Charles 
Warren, iii, 154. 3 Harpers' Weekly, 1867- 



M Hamilton Mere Here ®o=3Bap 93 

tional Amendment to abolish the Court entirely. 1 
In 1866 the size of the Court actually was reduced 
in order to deprive President Johnson of the oppor- 
tunity to fill a vacancy. But the Court went its 
Constitutional way with two further kindred deci- 
sions that rose above post-war prejudice 2 and 
insisted upon the preservation of individual rights. 
The authority of the whole Reconstruction Pro- 
gram was involved, in one way or another, in these 
Court proceedings and it was inevitable that fric- 
tion should graduate again into open breach. The 
South — historically the source of opposition to the 
Court's interference with Acts of Congress — now 
looked to the Court to do the very thing it had 
previously proscribed and to void these Recon- 
struction Laws. They found, by experience, that 
The Federalist, after all, was sound in its recom- 
mendations. Congress, on the other hand, was 
bent on forestalling any such check-mate. The 
House passed a Bill providing that in any case 
involving the validity of a Congressional Act, 
two-thirds of the Justices must concur in an opin- 
ion adverse to the Law. 3 But the familiar old 

1 Congressman John A. Bingham of Ohio in 39th Con- 
gress, 2d Session. 

2 Cummings v. Missouri and Ex Parte Garland, 4 Wall, 

277, 333- 

3 40th Congress, 2d Session. 



94 3tf Hamilton Mere ^txt ©chBap 

expedient failed in the Senate. Another unsuc- 
cessful proposal would have specifically refused 
jurisdiction to the Court in relation to Reconstruc- 
tion Acts. Finally on March 12, 1868, the House 
initiated a repeal of the Supreme Court's appellate 
jurisdiction under the Habeas Corpus Act of 1867 
and aimed it particularly at pending cases; the 
Senate concurred; President Johnson interjected a 
vigorous veto ; and Congress passed the legislation 
over his head. 1 Thus was consummated an attack 
which confessed, on its face, the unconstitutionality 
of the Congressional purposes which it was mani- 
festly feared and correctly assumed the Supreme 
Court would stop — an attack which has been char- 
acterized as " an abominable subterfuge on the part 
of Congress, and a shameful abuse of its powers." 2 
It was the sort of thing against which Washington 
warned in his Farewell Address. 3 " Toward the 
preservation of your Government and the per- 
manency of your present happy state, it is requisite 
not only that you steadily discountenance irregular 

1 This appellate jurisdiction was restored, in more tem- 
perate times, seventeen years later by Act of March 3, 1885. 

2 Reconstruction and The Constitution, by John W. Bur- 
gess, 196. 

3 It is pertinent to a study of Hamiltonism and The 
Federalist to observe in this connection that Hamilton was 
substantially the real author of the Farewell Address. 



3f Hamilton Mere Ifatxt ®o=23ap 95 

oppositions to its acknowledged authority, but also 
that you resist with care the spirit of innovations 
upon its principles, however specious the pretexts; 
one method of assault may be to effect in the forms 
of the Constitution alterations which will impair the 
energy of the system, and thus to undermine what 
cannot be directly over-thrown; . . . Liberty 
is, indeed, little else than a name where the Govern- 
ment is too feeble to withstand the enterprises of 
faction* to confine each member of the society 
within the limits prescribed by the Laws, and to 
maintain all in the secure and tranquil enjoyment of 
the rights of person and property." Fortunately 
for America, there have been few occasions when 
this advice has been transgressed ; but the cycle of 
impatience and unrest is upon us again in this 
modern day and the import of the words of the 
Father of his Country should not be lost upon our 
modern counsels. 

One year after the assault of 1868, another effort 
was made to delimit Supreme Court jurisdiction 
over "the decisions of the political departments of 
the Government on political questions." 1 But 
typical of the country's sober reaction, an editorial 
protest of The New York World 2 may be quoted: 

1 41st Congress, 2d Session. 

2 January 8, 1870. 



96 M Hamilton Mere Here ®o=®ap 

"If Congress can force the Judicial power to yield 
to it, the Constitution is annulled." When Sena- 
tor Charles D. Drake of Missouri followed 1 with 
an even more drastic inhibition, providing that no 
Court should have any power to adjudge invalid an 
Act of Congress, The World called it "a Bill to 
abolish the Constitution entirely." The Chicago 
Republican commented in words well worthy of 
modern repetition at a moment when the Drake 
proposal, in new dress, again impends: "The truth 
is, Mr. Drake's proposition is in outrageous repug- 
nance to the whole genius of republican Govern- 
ment; and he will find, we believe, but few sym- 
pathizers with his revolutionary scheme, either in 
Congress or among the people ; we cannot give up 
our Courts at present, even though experience has 
shown that they are not always infallible ; they are 
safer to trust to, in matters of Constitution and 
Law, than a tribunal selected as Congress is." All of 
these subsequent Congressional ambuscades came to 
nought — and through all this factious turmoil, the 
great Court went the even tenor of its way, " declin- 
ing ungr anted jurisdiction, but exercising firmly that 
which the Constitution and the Laws confer." 2 

1 December 13, 1869. 

2 The language of Chief Justice Chase in Ex Parte 
McCardle, 7 Wall, 506. 



M Hamilton Wece $$txz ®o=®ap 97 

There was further ruction when the Court re- 
versed itself within fifteen months, in 1871, in the 
famous " Legal Tender Cases," 1 and again when it 
established the inviolability of municipal bonds and 
refused their repudiation. 2 There was bound to be 
partisan discussion, too, when the Court refused to 
construe the scope of the new Fourteenth Amend- 
ment 3 as denying to the States authority over 
local monopoly, 4 and again when it specifically 
licensed the States to regulate monopoly and rule 
corporations and to fix public service rates. 5 The 
doctrine thus announced was subsequently cir- 
cumscribed by a requirement that rates must be 
"reasonable" 6 and that the rate power must not 
go to the extremes of 4 ' confiscation without due 
process of Law." 7 But, in the main, the Court 

1 Hepburn v. Griswold, 8 Wall, 603; Knox v. Lee, 12 
Wall, 457. 

2 A long series of these cases ultimately aroused such 
antagonism that as late as 1893, the Governor of Missouri, 
in a message to the Legislature, demanded action "to assert 
the outraged dignity of the State against usurpation of 
power by the Federal Judiciary." 

3 Proclaimed July 28, 1868. 

4 Slaughter House Cases, 16 Wall, 36. 

5 These were the so-called "Granger Cases," principal 
among which was Munn v. Illinois, 94 U. S., 113. 

6 As in Stone v. Farmers Trust Company, 1 16 U. S., 307. 

7 In C. M. & St. P. Ry. v. Minn., 134 U. S., 418, the Court 
"repudiated the doctrine of uncontrolled rights on the part 



98 M Hamilton Mere Here ®o=®ap 

moved into an era of practical immunity from as- 
sault for nearly a decade under Chief Justice Waite. 

In 1884, criticism broke out anew when the Court 
further expanded the " implied powers' ' of Congress 
and consented to the Act making Treasury Notes 
legal tender, particularly announcing the new doc- 
trine that the National Government possessed all 
powers belonging to other sovereignties unless with- 
held by express Constitutional restriction. 1 But 
the New York Times expressed the correct Ameri- 
can posture for dissenters when it said that while 
the decision "cannot command respect, it must 
command obedience." 

In the argument of U. S. v. Lee 2 involving the 

right of a citizen to hold Government officers to 

legal accountability, an incident occurred which 

further apostrophizes the indispensable creeds of 

Constitutional America. "Do I understand your 

position to be," said one of the Supreme Court 

Justices to Attorney Shipman, "that if the title to 

a piece of land on which the Government has set 

up a light-house should be disputed, the claimant 

might bring an action of ejectment, and, if success- 

of the Legislature to make rates, as emphatically as it 
repudiated the doctrine of uncontrolled rights on the part 
of agents of the corporations." 

1 Juilliard v. Greenman, no U. S., 421. 

2 106 U. S., 196. 



M Hamilton Were 3£ere ®o=®ap 99 

ful, remove the light-house?" " Certainly,' ' re- 
plied the intrepid lawyer; "that is my position. 
Far better extinguish all the light-houses in the 
land than put out the light of the Law." z 

Bitter assaults on the Court recurred again in 
1895. By a vote of five to four, the Wilson-Gor- 
man Income Tax Law was held unconstitutional. 2 
The ultimate result of this decision was the Six- 
teenth Amendment to the Constitution proclaimed 
in 19 1 3 — demonstrating the proper and Constitu- 
tional method for the country to proceed when 
desiring to exercise a power denied by fundamental 
Law. As Washington said, again reverting to his 
Farewell Address : ' ' If in the opinion of the people 
the distribution or modification of the Constitu- 
tional powers be in any particular wrong, let it be 
corrected by an Amendment in the way which the 
Constitution designates : but let there be no change 
by usurpation, for though this in one instance may 
be the instrument of good, it is the customary 
weapon by which free governments are destroyed ; 
the precedent must always greatly overbalance in 
permanent evil any partial or transient benefit 
which the use can at any time yield." And this, 

1 Reprinted in The Supreme Court in U. S. History, by 
Charles Warren, iii, 396. 

2 Pollock v. Farmers Trust Company, 158 U. S., 601. 



ioo M Hamilton Mere Here ®o=Bap 

too, was the constant mandate of The Federalist as 
it preached not only to Americans of its own time, 
but also to posterity. 

Equally bitter assaults followed validation of the 
injunction issued in the Pullman strike and riots 
of 1894. * It is worth while to observe that the 
Court spoke at this time as follows: "The strong 
arm of the National Government may be put forth 
to brush away all obstructions to the freedom of 
interstate commerce or the transportation of the 
mails; if the emergency arises, the Army of the Na- 
tion, and all its militia, are at the service of the 
Nation to compel obedience to its Laws; every 
Government, entrusted by the very terms of its 
being with powers and duties to be exercised and 
discharged for the general welfare, has a right to 
apply to its own Courts for any proper assistance 
in the exercise of the one and the discharge of the 
other. " This doctrine but answered the question 
raised by The Federalist 2 when it asked: "How is it 
possible that a Government half supplied and half 
necessitous, can fulfill the purposes of its institu- 
tion, can provide for the security, advance the 
prosperity, or support the reputation of the com- 
monwealth? " The application is different, but the 
principle is constant. 

1 In Re Debs, 158 U. S., 564. 2 No. 30. 



M Hamilton KJere l&txz ®o=©ap 101 

Against these verdicts which we have catalogued, 
and against kindred decisions particularly involving 
the new industrial problem created by the advent 
and growth of Labor unions, vicious attacks upon 
the Court were renewed, reminiscent of the passion 
and the lexicon of 1821 and 1857 and 1868. J But 
the frenzy spent itself against the impregnable good 
sense of America. It re-flared ten years later when 
the New York Bakers' 10-hour-law was held 
unconstitutional 2 — the same old charge of "usurpa- 
tion"; and the action of the Court in 1908 in re- 
straining State officials from carrying out State 
Laws alleged to violate the Constitution brought a 
protest — more temperate, as it was more legitimate 
— which resulted in a 19 10 statute forbidding the 
issue of such an injunction unless after hearing in a 
Court of three Federal Judges, one of whom should 
be a Supreme Court or Circuit Court Judge. 

There was a futile flurry over "the recall of 
judicial decisions" in 19 12 which failed as had every 
other major effort of similar purport since the or- 
ganization of the Constitution. Then came the 
declared unconstitutionality of Child Labor Laws 

1 The Democratic National platform of 1896 inveighed 
against "oppression by which Federal Judges, in contempt 
of the Law of the States and the rights of the citizens, be- 
come at once Legislators, Judges and executioners." 

2 Lochner v. New York, 198 U. S., 45 



102 3f Hamilton Mere 3£ere 3To=Bap 

in 1918, 1 and again in the latest 1922 term of 
Court; and with them has come the old attack in 
new form — the proposal to permit Congress to 
exercise supreme Constitutional authority over its 
own Acts, without respect to the veto of an inde- 
pendent Judiciary. One famous commentator 2 
finds but four possible decisions of the Supreme 
Court to which the proponents of this new-old 
emasculation could object, and says: "When 
serious error can be claimed in only four cases out 
of 564 involving the police power of the States, and 
out of the multitude involving the power of Con- 
gress acting under the commerce clause, it would 
seem that the evil complained of was practically 
non-existent ; certainly no other branch of Govern- 
ment, and no other human institution, ever func- 
tioned with a slighter percentage of error." He 
adds that "the American people will unquestion- 
ably conclude that final judgment as to their 
Constitutional rights is safer in the hands of the 
Judiciary than in those of the Legislature." Says 
another authority 3 : ' ' In times of political upheaval, 
of sectional animosity, of communistic uprising, 

1 Hammer v. Dagenhart, 247 U. S., 251. 

2 Junius Parker, American Law Review, 1896, xxx. 

3 The Supreme Court in U. S. History, by Charles Warren, 
iii, 466. 



M Hamilton Here Here ®o=3Sap 103 

the nine quiet men who spend their lives away 
from the political field, free from the necessity of 
demagoguery, constitute the very sheet-anchor 
of the institutions of our land." Indeed, in the 
light of episodes of our own history, it would seem 
that a new and modernized edition of The Federalist 
might well say to Americans of to-day, as they face 
new attempts to strip the United States Supreme 
Court of its authority to defend the Constitution, 
exactly what the old Federalist x said to Americans 
of another time, as they too chafed under prospec- 
tive Constitutional restraints: "If such men will 
make a firm and solemn pause, and meditate dis- 
passionately on the importance of this interesting 
idea ; if they will contemplate it in all its attitudes, 
and trace it to all its consequences, they will not 
hesitate to part with trivial objections to a Con- 
stitution, the rejection of which would in all proba- 
bility put a final period to the Union; the airy 
phantoms that flit before the distempered imagina- 
tions of some of its adversaries would quickly give 
place to the more substantial forms of dangers, real, 
certain and formidable." 

1 No. 8. 



l%e Court— anb ttsilatesft Jfoe* 

"An ELECTIVE DESPOTISM was not the Government 
we fought for ; but one which should not only be founded on 
free principles, but in which the powers of Government 
should be so divided and balanced among several bodies of 
magistracy, as that no one could transcend their legal limit, 
without being effectually checked and restrained by the 
others. For this reason, that convention which passed the 
ordinance of Government, laid its foundation on this basis, 
that the Legislative, Executive, and Judiciary departments 
should be separate and distinct, so that no person should 
exercise the powers of more than one of them at the same 
time." — The Federalist, No. 48. 

An ELECTIVE DESPOTISM— though spe- 
cifically repudiated by every properly interpreted 
declaration of the American Founders who played 
the master roles in the creation of this Government 
— is the aim of the latest organized raid upon the 
Federal Judiciary; and, let it not be forgotten, that 
a raid upon the Judicary, in these respects, is a 
raid upon the Constitution itself. There cannot be 
the slightest doubt where Hamilton would stand 
if he were here to-day. He would be Captain- 
General of the Hosts of the Constitution's defenses 

104 



M Hamilton Were %ere ®o=2Sap 105 

against this insidious, though superficially persua- 
sive, assault; and with him would stand the resur- 
rected spirits of every original Federalist who 
endorsed the Constitution and understanding^ sup- 
ported its creation. Perhaps this fact, of itself, is of 
small and meaningless consequence to the icono- 
clast. But when the logic of yesterday can be 
renewed, with unescapable challenge, in relation 
to the problems of to-day, it should not lessen the 
import of the argument to know that its honorable 
antecedents are as old and as time-tried as the 
Constitution itself. 

This latest quest for an ELECTIVE DESPOT- 
ISM may be considered as inherently typical of all 
such onslaughts; and when taken to pieces and 
examined — and found loaded with poison — these 
laboratory findings may, in turn, be considered 
typical of the conclusions which would be reached 
if any of its kindred heresies were submitted to 
similar acid test. The examination is useful, there- 
fore, not because this particular effort at Constitu- 
tional subversion can gain a following sufficient to 
raise it to the dignity of a menace, but because it 
affords a useful opportunity to specifically dis- 
cover, in a concrete example, the threats to the 
Republic which lie hidden in all similar enterprises. 

What is the new-old proposal? " If the Supreme 



106 M Hamilton Mere l&tvt ®o=©ap 

Court assumes to decide any Law of Congress 
unconstitutional, or, by interpretation, undertakes 
to assert a public policy at variance with the statu- 
tory declaration of Congress — which alone under 
our system is authorized to determine the public 
policies of Government — the Congress may by 
re-enacting the Law, nullify the action of the 
Court." 1 

Stripped of verbiage, this means just one thing. 
Congress shall be made the supreme Constitutional 
authority in the United States. The Supreme 
Court of the United States shall be shorn of its 
Constitutional power to defend the Constitution 
against Congressional invasion. Whatever Con- 
gress wants to do, Congress shall be able to do — 
regardless of whether it rapes every virtue in the 
Constitution and its Bill of Rights. The original 
Constitutional theory of divided powers, and checks 
and balances, shall be tossed to discard and ob- 
livion. Congress, not the Constitution, shall rule 
America. Doctrines of nullification — note that 
the quotation prophetically uses this very word — 

1 Address before the annual convention of the American 
Federation of Labor, at Cincinnati, Ohio, June 14, 1922, 
delivered by United States Senator Robert M. LaFollette 
of Wisconsin; printed in the Congressional Record of June 
25, 1922, and reprinted as a Public Document by order of 
the Senate. 



3f Hamilton Mtvt l&txt ®o=Bap 107 

shall at last possess the Republic. We must trans- 
fer our fidelities from a representative Republic, 
under Constitutional restraints, to an ELECTIVE 
DESPOTISM, shorn of restraints. 

When the American people yield to any such code 
as this, the Battle for the Constitution will have 
been lost — after one hundred and thirty years of 
successful combat against the forces of impatience 
and of faction, and of intemperance, and some- 
times, even, of disloyalty. 

These citizens, let it be understood, are wholly 
within their Constitutional rights in seeking this 
revolutionary change by the route of Constitu- 
tional Amendment. They must not be condemned 
as " direct actionists" who would substitute de- 
fiance for orderly evolution — even though their 
success would pave the way for "direct action,' ' 
in Governmental affairs, without regard to the 
Constitution. However much one may abhor the 
end they seek, one must admit that they propose a 
strictly Constitutional means to this end. Indeed, 
it is a rare compliment to the elasticity of the 
Constitution itself — amply refuting those capri- 
cious critics who constantly complain to the con- 
trary — that lawful means prove to be at hand for 
the promotion, and the attainment, of reforms so 
convulsive in their character that they would de- 



108 3ff Hamilton Mere 1$tvt ®o=23ap 

stroy the very genius of the Constitution itself. 
This is, in truth, a free country! If it were any 
" freer," Liberty would have to watch her step lest 
she slip into License ! 

If Hamilton, original spokesman for the Con- 
stitution, were here, he would respectfully but 
relentlessly scrutinize the arguments assuming to 
support the new Nullification; he would find in 
them the off -spring of many familiar fallacies which 
he, in his time, blasted; and, depending upon argu- 
ment rather than anathema, regardless of the 
temptation to speak in hot phrases against a prop- 
osition that would cause "incurable disorder and 
imbecility in the Government," 1 he would invite 
the American people to a sober contemplation of the 
dangers they are urged to embrace. Suppose we 
attempt that formula. What are the pretexts urged 
in favor of an ELECTIVE DESPOTISM, and 
what would be their consequence? 

I. "The American Nation," declares Nullifica- 
tion's proponent, "was founded upon the immortal 
principle that the will of the people shall be the Law 
of the land." 2 This statement is sound as a bullet. 
The Federalist 3 said: "The fabric of American em- 

1 The Federalist, No. 9. 

2 Senator LaFollette's address, as printed in Senate 
Document, p. 16. 3 No. 22. 



M Hamilton Were Here Co=2Sap 109 

pire ought to rest on the solid basis of THE CON- 
SENT OF THE PEOPLE; the streams of national 
power ought to flow immediately from that pure, 
original fountain of all legitimate authority." 
Here, at least, we have agreement upon an initial 
hypothesis. The question, then, is: which method 
best protects "the will of the people' ' — the existing 
Supreme Court authority over Constitutional inter- 
pretations, or the proposed Congressional supre- 
macy over the Constitution? And the moment we 
cut through sophistry, down to the bed rock of 
logic, we find the former utterly triumphant. 

As the Constitution stands today, it is paramount 
in its sovereignty. It is the creation of the people, 
and only the "will of the people" can change it. 
When question arises as to what it means, the 
Supreme Court gives it interpretation. If, upon 
occasion, this interpretation indicates that the 
Constitution is contrary to the "will of the people," 
the people, by amendment, can suit it to their own 
decisions. If, upon other occasion, the Court 
should manifestly and deliberately attempt the 
usurpation of palpably unconstitutional power, the 
impeachment of the entire Court rests within the 
authority of Congress. 1 Lacking all Legislative 

1 The Federalist, No. 81: " There never can be danger 
that the Judges, by a series of deliberate usurpations on the 



no M Hamilton Mere l$txz ®o=2Sap 

power, unable to initiate a single statute, confined 
in its operations to legalistic functions, and con- 
tinuously answerable to Congress for its probity 
and virtue, it is a physical impossibility for the 
Supreme Court to ravish the "will of the people," 
or to far invade the realms of "Government by 
consent of the governed." 

But contemplate the proposed alternative. If 
Congress can pass upon the Constitutionality of its 
own acts, without regard to the findings of an in- 
dependent juridical umpire, how can the "will of 
the people" preserve the Constitution against 
invasions to which the people might wish to dissent? 
There is no opportunity for popular mandate to 
express itself by way of Constitutional Amendment, 
because Congress, possessing the affirmative power 
of legislation, could disregard the Amendment as 
readily as it disregarded the Constitution and 
created the usurpation which Amendment might 
seek to cure. There is no possibility of check-mate 
by impeachment, because a majority of Congress, 
intent upon usurpation, would never vote its own 
degradation; the same majority which voted usur- 

authority of the Legislature, would hazard the united 
resentment of the body entrusted with it, while this body 
was possessed of the means of punishing their presumption 
by degrading them from their stations." 



M Hamilton Mere Here ®o=Bap 1 1 1 

pation, would as promptly refuse to sanction a pen- 
alty against itself therefor. If it be said that the 
"will of the people'' can express itself in a subse- 
quent Congressional election, the answer is that 
this sort of proxy-referendum would create, to all 
intents and purposes, a new Constitution with 
every gathering of the ballots, and the "will of the 
people" would only govern their agents, and not the 
fundamental Charter of Government itself. That 
would continue to be whatever chameleon thing the 
transient whim of a political Congress might dic- 
tate. Indeed, Congress, having usurped Constitu- 
tional power, and dreading a popular accounting, 
might vote itself an indefinitely lengthened term — 
no Supreme Court could say it nay — and thus void 
all expression of the "will of the people" entirely. 1 

1 The Federalist, No. 53, points out that in Great Britain, 
where the power of Parliament is transcendent, the Legis- 
lature has in several instances ' ' actually changed by Legisla- 
tive Acts some of the most fundamental articles of the 
Government. They have, in particular, on several occasions, 
changed the period of election; and, on the last occasion, 
not only introduced septennial in place of triennial elections, 
but by the same act continued themselves in place four 
years beyond the term for which they were elected by the 
people. An attention to these dangerous practices has pro- 
duced a very natural alarm in the votaries of free Govern- 
ment, of which frequency of elections is the corner-stone; 
and has led them to seek for some security to liberty, against 
the danger to which it is exposed. Where no Constitution, 



ii2 M Hamilton Mtvt T&txt tKo=®ap 

A curious way to serve "the immortal principle 
that the will of the people shall be the Law of the 
land"— to unleash an ELECTIVE DESPOTISM 
so omnipotent that it can even perpetuate itself 
in authority and laugh at its victims! To 
save themselves from that sort of enslavement, 
the "will of the people' ' would be left with no 
recourse other than armed rebellion. The Con- 
stitution would be as helpless as the people 
themselves. 

Sober judgment, in the face of these contempla- 
tions, can reach no possible conclusion than that 
the "will of the people" finds an indispensable ally 
in the Federal Judiciary, and that the eviction of 
the Judiciary, far from facilitating popular control 
of ordered, Constitutional Government, would rob 
the people of the only guarantee they have that 
their "will" shall prevail. 

If Hamilton were here, he would say that this 
nullification argument against the Judiciary "pre- 
sents itself under a very specious and seducing form ; 
and is well calculated to lay hold of the prejudices 
of those to whom it is addressed. But when we 
come to dissect it with attention, it will appear 

paramount to the Government, either existed or could be 
obtained, no Constitutional security similar to that estab- 
lished in the United States was to be attempted.' ' 



M Hamilton Mtvt jfytvt <Eo=3IUap 113 

to be made up of nothing but fair-sounding 
words." 1 

II. It is next urged that the existing system 
must be changed because the Judiciary is trespass- 
ing, by gradual encroachment, upon the preroga- 
tives of other departments of the Government. 
The remedy proposed for this alleged ailment, is to 
substitute Congress as a deliberate and premedi- 
tated and unchecked trespasser, and to strip the 
Judiciary of these prerogatives, not by any gradual 
encroachment, but by " putting the axe to the 
root." 2 Again the quotation uses prophetic words. 
No "axe" ever attacked the "roots" of a tree with- 
out threatening the branches, the leaves, and the 
fruit thereof. 

Even if the indicated ailment existed, the remedy 
proposed would be infinitely worse than the disease, 
because it is a proposition beyond dispute that an 
unchecked Legislature, next to an unchecked 
Executive, is the most potentially dangerous 
tyrant conceivable. Talk about a Frankenstein! 
You can never make a Soviet out of a Supreme 
Court, hedged on all sides as is ours. You can 
never make a Bourbon oligarchy out of a Federal 
Judiciary which lacks a single power of affirm- 

1 The Federalist, No. 35. 

3 Senator La Follette's phrase; Senate Document, p. 13. 

8 



ii4 3TC Hamilton Mere l&txt tEo=2Sap 

ative enslavement. But you can make any 
sort of a Monster, suited to the appetite of the 
ruling passion, out of a Legislature which is 
supreme above all things and all men. "The spirit 
of encroachment tends to consolidate the powers of 
all the departments in one, and thus to create, 
whatever the form of Government, a real despot- 
ism, ,, warned Washington's Farewell Address. 
In the last resort, such a despotism as we discuss, 
would leave Congress with unlimited powers. 
"This would be to do away with the great main 
principle of our written Constitution,' ' declares 
Vice-President Coolidge, 1 "which regards the 
people as sovereign and the Government as their 
agent, and would tend to make the Legislative 
body sovereign and the people its subjects. It 
would, to an extent substitute for the will of the 
people, definitely and permanently expressed in 
their written Constitution, the changing and un- 
certain will of Congress. That would radically 
alter our form of Government and take from it, its 
chief guarantee of freedom." Indeed, it should be 
accepted by the American people as an unwavering 
principle, that "to accumulate in a single body all 
the most important prerogatives of sovereignty is to 

1 Address at 1922 Convention of American Bar Associa- 
tion, San Francisco. 



M Hamilton ©Here Jfytvt tEo=2Sap 115 

entail upon our posterity one of the most execrable 
forms of Government that human infatuation ever 
contrived/' ' The tremendous French philosopher, 
Montesquieu, confirmed this sentiment : u Were the 
power of judging joined with the Legislative, the 
life and liberty of the subject would be exposed to 
arbitrary control, for the JUDGE would then be 
the LEGISLATOR." 2 

The extent to which the Judiciary can per- 
manently usurp Legislative power is limited at 
most — as any candid analyst of the Constitution 
must concede. But the extent to which the 
Legislature can usurp Judicial power — as indicated 
in the particular proposition we discuss — is utterly 
without any limits whatsoever. Therefore, even 
if the former evil shall exist in any degree, we are 
wise to choose the lesser of two evils when we make 
our choice. 

The real danger to freedom always was, and 
always will be, from the usurpations of which this 
latest doctrine of Nullification is typical. Let the 
authors of The Federalist discuss this proposition 
in their own language — and let it be remembered 
that truth is constant in all ages. 

11 In a representative Republic, where the Execu- 

1 The Federalist, No. 22. 

2 Quoted in The Federalist, No. 47. 



n6 M Hamilton Wtvt ©ere 3To=2Sap 

tive magistracy is carefully limited, both in the 
extent and the duration of its power; and where the 
Legislative power is exercised by an assembly 
which is inspired, by a supposed influence over the 
people, with an intrepid confidence in its own 
strength, and which is sufficiently numerous to feel 
all the passions which actuate a multitude, yet not 
so numerous as to be incapable of pursuing the 
objects of its passions, by means which reason pre- 
scribes; it is against the enterprising ambition of 
this department that the people ought to indulge 
all their jealousy and exhaust all their precautions. 
"The Legislative department derives a superior- 
ity in our governments from many circrmstances. 
Its Constitutional powers being at once more ex- 
tensive, and less susceptible of precise limits, it 
can, with the greater facility, mask, under compli- 
cated and indirect measures, the encroachments 
which it makes on the co-ordinate departments. 
It is not infrequently a question of real nicety in 
Legislative bodies, whether the operation of a par- 
ticular measure will, or will not, extend beyond the 
legislative sphere. On the other side, the Executive 
power being restrained within a narrower compass, 
and being more simple in its nature, and the 
Judiciary being described by landmarks still less 
uncertain, projects of usurpation by either of 



3f Hamilton Mtxt l&tvt ®o=©ap 117 

these departments would immediately betray and 
defeat themselves. Nor is this all: as the Legisla- 
tive department alone has access to the pockets of 
the people, and has in some Constitutions full dis- 
cretion, and in all a prevailing influence over the 
pecuniary rewards of those who fill the other de- 
partments, a dependency is thus created in the 
latter, which gives still greater facility to encroach- 
ments of the former." * 

Could the menace be more plainly or more 
sensibly stated? Even under Constitutional con- 
ditions as they exist to-day — with the full authority 
of the Judiciary unimpaired — the fake notion that 
the only " democracy" in the American form of 
Government is in the Congress frequently takes 
possession not only of unthinking people, but of the 
Congress itself. Again, listen to The Federalist 2 : 

"The representatives of the people, in a popular 
assembly, seem sometimes to fancy that they are 
the people themselves, and betray strong symptoms 
of impatience and disgust at the least sign of op- 
position from any quarter ; as if the exercise of its 
rights, by either the Executive or the Judiciary, 
were a breach of their privilege and an outrage to 
their dignity. They often appear disposed to exert 
an imperious control over the other departments; 

l No. 48. 2 No. 71. 



n8 M Hamilton Were 5^ere Q£o=2Bap 

and as they commonly have the people on their 
side, they always act with such momentum as to 
make it very difficult for the other members of the 
Government to maintain the balance of the 
Constitution.' ' 

It is unnecessary to amplify these arguments. 
Their conclusions are irrefutable. "The Legisla- 
tive department is everywhere extending the sphere 
of its activity, and drawing all power into its im- 
petuous vortex/' said The Federalist 1 more than a 
century ago. Against this trend, inimical to liberty, 
the Constitution undertook to erect barriers that 
should protect America against an ELECTIVE 
DESPOTISM. Time has not shunted the trend 
nor depreciated the importance of the barriers. 
If we, of to-day, are called to contemplate any 
dangers from encroachments of one department 
upon another, let it be clearly seen that the inher- 
ent capacity for encroachment resident in the 
Judiciary is as nothing compared with the inher- 
ent capacity for encroachment resident in the 
Legislature; and if, to curb the former — admitting 
that there have been occasions when the Judiciary 
has trespassed — we invite the latter, we have, at 
most, but chosen the "fire" in preference to the 
"frying pan." 

1 No. 48. 



M Hamilton Mtvt l&txz tKo=2aaj> 119 

III. But, it is next urged by these modern 
Nullificationists, that, under existing circum- 
stances, since the Judiciary can veto the Constitu- 
tionality of an Act of Congress, the Judiciary is 
elevated above Congress and "the actual ruler of 
the American people is the Supreme Court." 1 
This is a subtle delusion. When the Judiciary 
vetoes an unconstitutional Act of Congress, it 
merely commands that Congress, as well as itself, 
shall be subordinate to the Constitution as or- 
dained, or amended, by the people. It does not 
place itself above Congress. It merely places the 
Constitution above both. It merely insists that 
"the actual ruler of the American people' ' shall be 
the Constitution, and, therefore, the people them- 
selves. The Nullificationists propose to substitute 
an ELECTIVE DESPOTISM in which "the 
actual ruler of the American people" shall be an 
unchecked Legislature. 

Here, again, The Federalist 2 disposes of this latest 
argument against the Judiciary, as patently as 
though it were written this very year: 

"Some perplexity respecting the rights of the 
courts to pronounce legislative acts void, because 
contrary to the Constitution, has arisen from an 

1 Senator La Follette's phrase, Senate Document, p. 2. 

2 No. 78. 



120 31 f Hamilton Were Here Co=©ap 

imagination that the doctrine would imply a 
superiority of the judiciary to the legislative power. 
It is urged that the authority which can declare 
the acts of another void must necessarily be supe- 
rior to the one whose acts may be declared void. 
As this doctrine is of great importance in all the 
American constitutions, a brief discussion of the 
ground on which it rests cannot be unacceptable. 

"There is no position which depends on clearer 
principles than that every act of a delegated au- 
thority contrary to the tenor of the commission 
under which it is exercised, is void. No legislative 
act, therefore, contrary to the Constitution can be 
valid. To deny this would be to affirm that the 
deputy is greater than his principal; that the ser- 
vant is above his master; that the representatives 
of the people are superior to the people themselves; 
that men acting by virtue of powers may do not 
only what their powers do not authorize, but what 
they are forbid. 

11 If it be said that the legislative body are them- 
selves the constitutional judges of their own powers, 
and that the construction they put upon them is 
conclusive upon the other departments, it may be 
answered that this cannot be the natural presump- 
tion where it is not to be collected from any particu- 
lar provisions in the Constitution. It is not other- 



n .hi mtmn ••• 

, •>* 

■ ■> . 

■ s ■ ■* > *- 

f-tKit monfh, jwi 
eTthe PHlMiAbia 
r irginia, that $1 the 
eir delegates** Coj- 
** waited on % jrtfce 
iat town, wh<Mpld 
urn Mm their thinks 
pa the Federal <|on* 
iWhorrencc of ft/^nd 
m that town wilkin 
wer for his perfomal 
tee, mould he exceed 
defies. Loudon, that 
quainting them yon 
;£of this doe* inform 
nm trtie< The law* 
the people of Alex- 
efpeSabiiti) •i Mr. 



«PHMT 



I Ylrift wi«!«Be wift an old faying* whiclt every 
m*n who««ga*e* i*4Lfi>utaticn f ought confiamly 
^faWfacfaiVm*** fVe«'»qi pctid|j», da mufqne 

. I«*r y#ttf oMbt friend and fcrvant, ; ' 
ABTYANaI 



TkeFXEDER ALIST,N<>, ** 

. f • lAr /VsJsV V*'** ***** V &***•&**• 

AFTER an unequivocal experience: of the ineffi- 
cacy of the fubtiftiug k federal Government, 
-you are called upon to deliberate on a new conftkn- 
tion far the United States of America. The fubjee* 
fpeaka it* own importance ; comprehending in its 
confequencctf nothing Ida than the cxiftcnccof the 
UNION, the iarety and wet tare of the part* of 
which it is compofed, the fate of an empire, in ma- 
ny nrTpeC^«t the molt int* retting in the world. It 
nas been frequently remarked, that it fecms to have 
been re&tved to the people of this country, by their 
"conduct and example, to decide the important 

y Jh tmtrtipt to have [ -queftion, whether focieties of men arc realty cap-v 

ficatorsof tliis faffe- 

number of rhofe who 

JWw Conjtitvtfon by 

ainhr imagining that 

e people wil! be im- 



any imprelTioi 

from the evi«fc 

at tfctfame ti 

genie of tb?» 

unfriendly to r 

try men, I.ow 

im attentive c< 

it it your int< 

that thk is tfi* 

dignity, and% 

Which I do no 

appearance of 

1 frankly ackn 

I will freely!. 

4hey are fbunc 

fccntions difdat 

multiply profe 

*mrft remain if 

My argument 

Judged of by a? 

a fpirit, which 

J prop* fe in 

lowing interef 

UNION toy w 

"of ike prejenl 



tan*. Thefc perfon* 
they are not doing 
titution by practice* 
uirbent on you Meff, 
becaufe your yefter* 
tj from Philadelphia* 
mther Printer (in his 
y\ making the fame 
York fYomVfrgmiv— 
New- York ncard it 
*hitaJrtf>bia. 

fca Oi« TRUTH* 



the necejfity oft 
Me or not, of eftabWhmg good government irom re r j ^tib the on* pi 
Section and choke, or whether they are forever def- — fa ro „f or mi 
tlned to depend, for their political confthutions, on \ trite prbtcij'es % 
accident and foece, If there be any truth in there- ] tojour^ own Su 
mark, the criGs, at which we are arrive^, nurjr ■ Jhtonal Jnurit; 



Smturdaj, 03. 27. 

refterday» a perform- 
Paulas, the intention 
rn into contempt the 
itton lately held in St. 
in the courfe of £ few ■ 

made the vehicle to. 
I think, . undeferved 
Church and her Mini- 
iiberal attacks, fo far 
n returned ; and the 
filence into pnGlfoni- 

in a caufe, which <ive 

We wifh to live in 

5 re not to interfere at 



with propriety be regarded a**the sera m which 
that decifion is to be made^ and a wrong election 
of the part we (hall a&, may, in this view, defer vc 
to be cottfidered a* the general misfortune of man- 
lpn4. 

This idea will add the inducements of philanthro- 
py to thole of patriotifin to heightea the loticitude, 
which aU confidcrate and good men nw ft" fee I for 
the eventr- Ha^py will it be if our choice fhould be 
decided by a judicious eAiraate of our true interefts, 
unperplexed and unhiiilcd by conffaerstior.* not 
connected with the pyblic good. But this is a thing 
more ardently to be wklu*:!, than fcrioufly to be, 
expected. Thespian offVret! to ou»- deliberations, 
affects too many particular interests, innovates upon 
too marry local ,mttitutions, not to involve in its 
difeudion a variety of objects foreign to its merits, 
and of vievrs, pai'Uons and prejuLUces little fiverabie 
to the difcovery of truth. 

Among the moft formidable of the cbftaclcs which 
I the new constitution Will have to tncounlfr, may 
reaaily bcdiilinpuilhed the obvious inrereO cf a cer- 
tain c!a& of men in every State to rtrlilt all changes 
m-hich may hazard a diminution of the power, *•- 
molument and conleou^nee of the o!!j£es they hold 
under the State- eftablifhraents — and the perverted 
ambition of another clai* of nien, who will either 
hope to aggntfultfe thrmfetves by »he conhifions of 
their country, or will flatter J^emfelves 'viih,falrer 



the pre/ervatk 
I liberty and topi 
I Jn the progn 
i to giv^; a fatisf 
j which (hall hat 
«* feem to have ar 
j Jt may perf.a 
i gumento, to pr« 
point, no douj 
j the great botfy 
I which it may h 
I the facl is, tha 
1 t)«e private ci: 
conftitution, ti> 
great extent fo< 
irtuU ofnecefifit 
diiiirt^ piriio- 
will, in all j>r, 
till it has rotar 
avowal of it. 
th< fc wuo are . 
fuhjtcl, than r 
rjew conTlitutic 
Jt wi'l there/x- 
tdvanuges n/t 
.proh?blr d&U£< 
pofed from its 
cooiiitutr the It 



profprcts of eievatioo from the iu^civiuon oi the \% 
empire iut« Cevtral partial confttleracies, than from J 



* The fame 
eenfequmcts, u 



122 M ^amtltou Wtxt %$tvt ®o=3Bap 

the latter rather than the former. They ought to 
regulate their decisions by the fundamental laws 
rather than by those which are not fundamental." 

IV. This brings us to the notion, advanced by 
modern Nullificationists, that the Constitution 
never intended to allow the Supreme Court to pass 
upon the Constitutionality of an Act of Congress, 
and, therefore, that the Court "has secured this 
power by usurpation." 1 This point turns entirely 
upon a correct reading of history. Modern opin- 
ions cannot possibly be as instructive as the opin- 
ions of men who sat in the Convention which 
framed the Constitution, the men who lead in dis- 
closing its purposes to the people at the time they 
voted its validation, and the men who, still in fresh 
contact with these other authoritative sources of 
information and inspiration, set the machinery of 
the Constitution in motion. Almost with one voice, 
they deny this resurrected pretension that the Con- 
stitution intended to leave Congress supreme in 
determining the Constitutionality of its own acts. 

We have already listened to testimony, on this 
score, from The Federalist — than which there could 
no more authentic historical reference in a matter 
of this particular import. Repetition seems un- 
necessary. "In framing a Government which is to 

1 Senator LaFollette's phrase, Senate Document, p. 3. 



M Hamilton Were T&txz ©o=®ap 123 

be administered by men over men, the great diffi- 
culty lies in this : you must first enable the Govern- 
ment to control the governed ; and in the next place 
oblige it to control itself. A dependence on the 
people is, no doubt, the primary control on Govern- 
ment; but experience has taught mankind the 
necessity of auxiliary precautions. ,,I That the 
chief among these ''auxiliary precautions" is the 
Supreme Court, in its relation to unconstitutional 
acts, is demonstrated by repeated Federalists 
proofs, and confirmed by an unbroken line of 
Constitutional decisions from that day down to 
this. 

Patrick Henry, though hostile to the Constitu- 
tion, said in the Virginia Convention: "I take it 
as the highest emconium on this country that the 
Acts of the Legislature, if unconstitutional, are 
liable to be opposed by the Judiciary. . . . The 
Judiciary are the sole protection against a tyran- 
nical execution of the Laws." 

Governor John Hancock, in an address to the 
Massachusetts Legislature 2 declared: "Our per- 
sons and possessions are governed by standing and 
known Laws, and secured by a Constitution formed 
by ourselves. This Constitution is a Law to the 

1 The Federalist, No. 51. 

2 June 3, 1790. 



124 M Hamilton (Here J^ere ®o=23ap 

Legislative authority itself, and lest the pride of 
office or the hand of lawless power should rob the 
people of their Constitutional security, a proper 
balance is provided in the Judicial Departments/ ' 
This is important testimony. These modern Nulli- 
ficationists love to pretend that they can find 
credentials in the Declaration of Independence. 
The first signature upon the Declaration was that 
of John Hancock. And here is Hancock not only 
officially proclaiming that the Judiciary is a Con- 
stitutional check against the Legislature, but also 
epitomizing the reasons why this doctrine is an 
absolute American essentiality. The Declaration 
itself complained that the British King "has 
combined with others to subject us to a jurisdic- 
tion foreign to our Constitution"; these modern 
Nullificationists would set up a " jurisdiction" just 
as "foreign to our Constitution" when they make 
an unrestricted Congress supremely sovereign over 
the destinies of the Republic. The Declaration 
said, among other things, that a "British King has 
obstructed the administration of justice"; yet, in 
the name of the Declaration — borrowing the livery 
of Heaven to serve the Devil in — these modern 
Nullificationists would "obstruct the administra- 
tion of justice" by reducing it, in Constitutional 
affairs, to the basis of a biennial political referen- 



M Hamilton Here Here ®o=®ap 125 

dum! George III never thought of a more per- 
verted idea in his whole crazy life! "We have 
warned them ('our British brethren') from time to 
time of attempts by their legislature to extend an 
unwarrantable jurisdiction over us," reads the 
Declaration : and, at this late day, modern Nullifica- 
tionists invoke the Declaration to justify modern 
Legislatures in a modern effort "to extend an un- 
warrantable jurisdiction over us" in a lethal fashion 
which would emasculate the entire theory of 
American Constitutional affairs! Mirabile dictu! 
The Kentucky and Virginia Resolutions of 1798- 
99 were, of course, doctrines of nullification to the 
extent that they declared the rights of the States 
to make their own Constitutional interpretations; 
but they were not a proclamation or endorsement 
of the view that the Supreme Court lacked Con- 
stitutional jurisdiction over the Acts of Congress. 
On the contrary, John Breckenridge, in the Ken- 
tucky Legislature, leading the 1798 contest for 
these Resolutions, denied emphatically that Con- 
gress were "the sole Judges of the Constitutionality 
of all Acts done by them." Jefferson and Madison 
sponsored these same resolutions in Virginia. Yet 
as late as 1798, Jefferson admitted the jurisdiction 
of the Court; and Madison, who collaborated with 
Hamilton in the authorship of The Federalist, de- 



126 M Hamilton Mere ?#ere ®o=Bap 

nied thirty years later, when his Resolutions were 
being cited in support of a Nullification movement, 
that they constituted or implied any denial of the 
supremacy of the Judiciary. 1 As for Jefferson, 
regardless of what he ultimately said and did in 
keeping with his easy accommodation to political 
expediency, he declared, following his election to 
the Presidency, 2 that the Constitution must be 
administered "according to the safe and honest 
meaning contemplated by the plain understanding 
of the people at the time of its adoption, a meaning 
to be found in the explanations of those who advo- 
cated, not those who opposed it; THESE EX- 
PLANATIONS ARE PRESERVED IN THE 
PUBLICATIONS OF THE TIME." 3 What was 
the leading Constitutional publication of the time? 
The Federalist. Who was the Constitution's lead- 
ing advocate? Alexander Hamilton. What did 
Hamilton say upon this subject in The Federalist? 
Read his unequivocal, unmistakable words 4 : 
''The complete independence of the Courts of 

1 The Supreme Court in United States History, by Charles 
Warren, i, 260. 

2 Jefferson's reply to the congratulatory address of the 
Rhode Island Legislature, soliciting his views on the Con- 
stitution. 

3 Elliott's Debates, iv, 446. 
6 The Federalist, No. 78. 



M Hamilton Mere Here ®o=3iap 127 

justice is peculiarly essential in a limited Constitu- 
tion. By a limited Constitution, I understand one 
which contains certain specified exceptions to the 
legislative authority; such, for instance, as that it 
shall pass no bills of attainder, no ex post facto 
laws, and the like. Limitations of this kind can be 
preserved in practice no other way than through 
the medium of Courts of justice, WHOSE DUTY 
IT MUST BE TO DECLARE ALL ACTS 
CONTRARY TO THE MANIFEST TENOR 
OF THE CONSTITUTION VOID. WITHOUT 
THIS, ALL THE RESERVATIONS OF PAR- 
TICULAR RIGHTS OR PRIVILEGES WOULD 
AMOUNT TO NOTHING." 

Is there any doubt what Hamilton would say or 
do, if he were here to-day? No more than that 
these modern Nullificationists cannot muster a 
single respectable supporter out of the history of 
those times, to vindicate their perversion of the 
spirit and the purpose of the Constitution. x 

V. It is said, in the bill of particulars filed by 

these new Nullificationists, that the "isolation" 

of the Supreme Court has resulted in acts that are 

1 An excellent discussion of this phase of the subject is an 
article entitled " The Constitution Is The Higher Law," by 
Judge Preston A. Shinn of Pawhuska, Oklahoma, read into 
the Congressional Record, 67th Congress, 2d Session, and 
later printed as Senate Document No. 234. 



128 M Hamilton Mere S^ere tE;o=Bap 

" wholly inconsistent with popular Government." 1 
It is idle to discuss this indictment in the light of 
various isolated decisions which, at the moment, 
have dissented from public expectation. The mere 
fact that a decision is contemporaneously unpopu- 
lar bears no relationship to its Constitutional vir- 
tue ; neither does it reflect upon the integrity of the 
Court. Those who are inclined most vehemently 
to complain at one moment, usually live to see the 
day when, at some other moment, they whole- 
heartedly applaud. Thus the great South which, 
originally, was the chief critic of the Court's " usur- 
pation" in decisions amplifying Federal authority 
at the expense of State sovereignty, turned to the 
same Court in Reconstruction Days and gratefully 
gained protection from it against an improper ex- 
ercise of this same amplified Federal authority 
under the post-bellum Fifteenth Amendment. 2 
Thus, too, when Labor Unions were shocked in 1908 
when the Court found that a Labor boycott vio- 
lated the Sherman Act 3 and proclaimed it an evi- 

1 Senator LaFollette's phrase; Senate Document, p. 14. 

2 Chief Justice Waite said, in U. S. v. Reese, 92 U. S., 214: 
"Congress is supreme within its sphere, but the Courts, 
when called upon in due course of legal proceedings, must 
annul its encroachments upon the reserved powers of the 
States and the people." 

3 Loewe v. Lawlor, 208 U. S., 274. 



M Hamilton Here Here ©o=2Sap 129 

dence of the servility of the Bench to "Big Busi- 
ness,' ' they totally forgot how equally shocked " Big 
Business'' had been when the same Court, in 1897, 
found that " railroad pools" were illegal under the 
same Act. 1 In other words, even though a large 
sector of the Nation be disappointed in some par- 
ticular Court decision — and even admitting, for 
the sake of the argument, that these decisions oc- 
casionally are wrong — the fact remains that this 
condition is no reflection on the Court or the 
Constitution or the American theory of Govern- 
ment. It is merely proof that no human machin- 
ery can be infallible ; and it ought to serve princi- 
pally as an emphasis, by comparison, upon the 
rare record of the Court for being right in a vast 
preponderance of its conclusions. "The supposi- 
tion of universal venality in human nature is little 
less an error in political reasoning than the sup- 
position of universal rectitude. The institution of 
delegated powers implies that there is a portion of 
virtue and honor among mankind which may be a 
reasonable foundation of confidence; and experi- 
ence justifies the theory." 2 

But if these modern Nullificationists propose to 
summon the extremes of contemplation to bolster 

1 U. S. v. Trans-Missouri Freight Ass'n., 166 U. S., 290. 

2 The Federalist, No. 78. 



130 M Hamilton ffliere Here ©o=®aj> 

their charge that the existing system invites results 
that are " wholly inconsistent with popular Govern- 
ment,' ' what will they say of the extremes, " wholly 
inconsistent with popular Government" which 
would be abhorrently invited by a recourse to the 
expedient which they recommend as a substitute? 

Suppose Congress were clothed with power to 
settle the Constitutionality of its own Acts. If, in 
the heat and passion of a political canvass, an ultra- 
radical Congress were elected — elected, perhaps, 
by a minority of votes, thanks to a division of the 
electorate among several formidable parties 1 — it 
could, if it pleased, vote the unrequited confiscation 
of private property. And then, though the Con- 
stitution expressly proscribes any such tyranny, 
it could declare its own Act to be Constitutional — 
and no Supreme Court could say it nay ! 

Suppose, on the other hand, that, through a cun- 
ning manipulation of political agencies, a grimly 
reactionary Congress were to be elected — and let 
it not be forgotten that it is a favorite complaint 
among "progressives" that this sort of Bourbon 
control is a too constant political phenomenon — 
it could, if it pleased, vote the conscription of 
Labor; it could invade the whole calendar of the 

1 The successful candidates in the election of 191 2 were 
almost all minority representatives. 



M Hamilton (Here Here ®o=Bap 131 

Bill of Rights and make a travesty of Constitu- 
tional freedom. And then, though the Constitution 
was expressly ordained to prevent such despotism, 
it could declare its own Acts to be Constitutional — 
and no Supreme Court could say it nay ! 

In God's name, let it be asked, are such con- 
templations as these an IMPROVEMENT upon 
the existing conditions under which we live? Is it 
for such an ELECTIVE DESPOTISM as this 
that modern " progressive" thought intends to 
strive? 

Back in the old days the State of Pennsylvania 
had a " Council of Censors" in 1783 and 1784 to 
inquire whether the Legislative and Executive 
branches of Government had exercised other or 
greater powers than the State Constitution per- 
mitted. This Council found many such occasions 
— even that "the Constitutional trial by jury had 
been violated." ■ The same thing could, and would, 
happen again if modern Nullificationists could 
succeed in leaping past our modern "Council of 
Censors" in their avid thirst for easier power. 

The American Federation of Labor figures promi- 
nently among the proponents of this ELECTIVE 
DESPOTISM . Struggling toward broader emanci- 
pation for its class, the Federation naturally is 

1 The Federalist, No. 48. 



132 M Hamilton JUere l&ttt ©o=®ap 

hospitable to new ideas which offer promise of ad- 
vantage. But this is the promise of a cruel mirage. 
No single group in all America has more to lose 
than has Labor, from a breach in the Constitution 
or the Bill of Rights, because the foes, against 
whom Labor is constantly at war, have such a 
normal superiority of resources that the Constitu- 
tion and the Bill of Rights are essential as levellers, 
to equalize the equities. Labor would toss away 
its most powerful weapons of defense if it parted 
with the Constitution and the Bill of Rights, and 
to leave these safe-guards at the mercy of an 
ELECTIVE DESPOTISM, is to part with them, as 
automatic guaranties, forever. It is not difficult 
to agree with the chief apostate, now advocating 
nullification, that the Constitution and the Laws 
should be administered with an eye to their spirit 
rather than their letter. ■ This rule of judicial con- 
duct is indispensable in an enlightened Nation. 
But how can the "spirit" be promoted, if the 
"letter" be killed? A stream can rise no higher 
than its source. 

VI. Consecutive consideration of the new nulli- 
fication now naturally reaches the proposition that 

1 Interview with Senator La Follette, Detroit Free Press, 
September 24, 1922, quoting Scripture: "The spirit giveth 
life, but the letter killeth." 



3f Hamilton Wtxt ffitxt tCo-JSap 133 

it is recommended by the British system, under 
which Parliament is supreme. The specific applica- 
tion attempted is most tortuous, because it becomes 
necessary for the sophists to liken our own Supreme 
Court to the British House of Lords, * instead of to 
the British Judiciary — it being the Lords whom the 
Commons checkmate, since there is no Constitu- 
tion and no Constitutional Judiciary to intervene 
at all. We do not find these Nullificationists pro- 
posing to make our own House of Representatives 
dominant over our Senate — a more truthful par- 
allel, if any be attempted at all — because they 
known this would be a step toward instabilities 
from which they could glean no profit. It suits 
their purpose better to mix the metaphor and thus 
pretend a fake analogy which is as strained as it is 
crooked. The truth is that there is no analogy at 
all. The British and the American theories of 
Government, in certain fundamentals, are incom- 
patible. If we were to propose to borrow one link 
from the British chain, we should find ourselves 
required to borrow another, and then another. 
It is, indeed, curious to find, upon this occasion, 
that those of our leaders who have made it the pro- 
fessional practice of their whole political lives to be 
intolerantly and intolerably anti-British, should 
1 LaFollette's Speech, Senate Document, p. 16. 



134 3tf Hamilton Mere Spere ®o=3@ap 

suddenly become pro-British in these particular 
enthusiasms. But we are indebted to them, in this 
respect, for inviting a conclusive demonstration, 
on the basis of their own exhibit, that Congressional 
supremacy over the Constitution would strike 
down the most sacred of all American guaranties. 
Listen to this description of the British system by 
a native authority. ■ 

" Parliament can do no wrong. No Judge or 
higher authority can challenge or deny any deci- 
sions, however absurd or monstrous these decisions 
may be even to the very people who elected those 

members of Parliament In Britain there 

is no written Constitution, and Parliament can do 
exactly as it pleases. It could pass a Law that 
every red-headed man should be hanged, and the 
Courts of Law should have to carry out its bidding. 
It could pass a Law that every man who now had 
no property, should receive the property of those 
who had some, who henceforth would have none. 
... It could even withhold the right of appeal 
to the Court of Justice, by itself decreeing sen- 
tences on any man without judicial aid." 

This is the system inferentially recommended to 
us as an improvement upon the American structure 

1 How England is Governed, by the Right Hon. C. F. G. 
Masterman, formerly member of the British Cabinet. 



M Hamilton Mere ©ere ®o=5!Bap 135 

of guaranties under which invasion of personal and 
property rights, though temporarily attempted, 
can never be permanently achieved ! To those who 
thus would trade their birth-right for a mess of 
pottage, Hamilton would say x : "They seem never 
to have recollected the danger from Legislative 
usurpations which, by assembling all power in the 
same hands, must lead to the same tyranny as is 
threatened by Executive — or Judicial — usurpa- 
tions." Of their logic he would say 2 : "It must 
appear to everyone more like the incoherent dreams 
of a delirious jealousy, or the misguided exaggera- 
tions of a counterfeit zeal, than like the sober appre- 
hensions of genuine patriotism." With the British 
example particularly in mind, he would observe 
that the independent Judiciary "ina monarchy is 
an excellent barrier to the despotism of the prince ; 
in a Republic, it is a no less excellent barrier to the 
encroachments and oppressions of the representa- 
tive body." 3 With an eye to the possible extent of 
such abortion, he would argue that "usurpation 
may rear its crest in each State, and trample upon 
the liberties of the people, while the National 
Government could legally do nothing more than 
behold its encroachments with indignation and 

1 The Federalist, No. 47. 

2 Ibid., No. 46. 3 Ibid., No. 78. 



136 M Hamilton JUere Ifatxt Co=2Sap 

regret. A successful faction may erect a tyranny 
on the ruins of Law and Order, while no succor 
could Constitutionally be afforded by the Union to 
the friends and supporters of the Government." 1 
The new nullification would "mean nothing less 
than the destruction of our written Constitution," 
declared a report of the American Bar Association's 
Committee on American Ideals. 2 " Under such a 
proposal the American people are guaranteed free- 
dom of speech and action only until some Legisla- 
tive body declares otherwise." Scarcely a whole- 
some American doctrine! And — strange paradox! 
— the last persons who ought, logically, to embrace 
it, are the very radicals who are pulmotoring it into 
temporary vitality ! 

VII. But, it is next protested, if we must lodge 
the interpretation of the Constitution somewhere, 
why not trust 500 men in the Congress, instead of 
nine men upon the Supreme Bench? It would be as 
reasonable to protest against trial by jury, in our 
private relations to the Law. Why trust twelve 
men, instead of a town meeting? Those who rely 
upon mere numbers for protection should demand 
— if they would be logical — plebiscites to adjudi- 
cate individual invasions of civil and criminal Law, 

1 The Federalist, No. 21. 

2 San Francisco Convention, 1922. 



M Hamilton Mere %ere ©o=2aap 137 

at the same time they are demanding a crowd to 
settle Congressional invasions of Constitutional 
Law. And then — to crown the absurdity — if it is 
wise that Congressmen and Senators should decide 
their own responsibility to the Constitution, when 
challenged, it is reasonable that defendants, in 
civil and criminal Law, should sit on their own 
juries. The Federalist, ' but echoed an elementary 
Anglo-Saxon maxim, when it said : "No man ought 
certainly to be a Judge in his own case, or in any 
cause in respect to which he has the least interest 
or bias." If this be not enough in itself, conclu- 
sively to dispute the heresy that the Constitution 
may properly be left to the discretion of those 
who propose to validate their own invasions of 
it, a further consideration is urged by this same 
oracle: "The members of the Legislature will 
rarely be chosen with a view to those qualifications 
which fit men for the stations of Judges; and as, on 
this account, there will be great reason to appre- 
hend all the ill-consequences of defective informa- 
tion, so, on account of the natural propensity of 
such bodies to party divisions, there will be no less 
reason to fear that the pestilential breath of faction 
may poison the fountains of justice. The habit of 
being continually marshalled on opposite sides 
I No. 81. 



138 M Hamilton Were ©ere ®o=2Sap 

will be too apt to stifle the voice both of Law and of 
equity." Such political jurors would "consider 
the conformity of the thing proposed, to their im- 
mediate interests or aims ; the momentary conven- 
iences or inconveniences that would attend its 
adoption." 1 They would think more of the next 
election than of the next generation. But the 
great, unescapable, fundamental, American need 
is to "consider the conformity" of questioned Acts 
to the Constitution, and not to the zeals, frequently 
transient, of a particular political moment. 

Nor is there any more reason to cry out against 
the settlement of Constitutional questions by 
Justices, instead of Congressmen, because the 
Court sometimes decides moot questions by a 
majority of one, 2 than to cry out against popular 
elections because Edward Everett was defeated for 
Governor of Massachusetts in 1840 by a single vote, 
or because Samuel J. Tilden was defeated for 
President of the United States in 1876 by a single 
electoral vote. One contemplation answers the 
other. It can at least be said that if one Justice 
out of nine constitutes the majority upon which 
important decisions sometimes hang, the percent- 
age — one in nine — is infinitely larger than when, for 

1 The Federalist, No. 15. 

2 LaFollette's Speech, Senate Document, p. 2. 



3Jf Hamilton 8Here $$zxt ©o=31ap 139 

example, Grover Cleveland was elected President 
in 1884 through the electoral vote of New York 
State which he carried by only 1,149 plurality. 
Thus a super-important issue was decided by 1,149 
out of 9,754,351 voters — not one in nine, but one 
in nine thousand! This is one of the penalties of 
representative democracy; and it is acceptable 
chiefly because no substitute for representative 
democracy — if this paradoxical phrase be per- 
mitted — could be less unacceptable. 

A requirement of more than a bare majority of 
the Supreme Court to invalidate an Act of Congress 
might have formidable arguments to defend it. 
Certainly none of these insurmountable objections 
would confront it. But to wipe out the Court 
entirely — to wipe out the whole nine in order to 
prevent " majorities of one" — is the philosophy of 
the " Barnburners" all over again. Constitutional 
sanity cannot approve. 

VIII. A conclusion of this particular study must 
attend to a variety of incidental arguments. 

We find constant references to the "recall of 
Judges" as a symptom of the popular dissatisfac- 
tion with our courses of justice, and as a spiritual 
justification for this nullification raid. But the 
"recall of Judges" — always an anomaly, because 
legal justice can never be a matter of popular vote — 



140 M Hamilton Mere l^ere ®o=3Bap 

is a waning fad. The Judge who violates his oath 
can always be impeached ; nothing which would not 
justify his impeachment could justify his removal 
otherwise. Theodore Roosevelt once may have 
favored "the recall of judicial decisions/ ' in one 
of those lapses which are inevitable in the otherwise 
sound philosophies of a great political leader who 
dares a multitude of pioneering fields. 1 But he 
lived to tacitly condemn his own invention, by 
wholly ignoring it in the maturer years of his superb 
service for America; and he himself once said — "In 
not one serious study of American political life 
will it be possible to omit the immense part played 
by the Supreme Court in the creation, not merely 
in the modification, of the great policies through 
and by means of which the country has moved on to 
her present position." 2 If it be said that the adop- 
tion of the "recall of Judges" by "at least three 
States of the Union" 3 is a sign of popular dissatisfac- 
tion with judicial "usurpations," it may be an- 
swered that the absence of this socialistic device in 

1 Oscar Straus, in his book "Under Four Administra- 
tions," says: "I believe now, as I believed in 1912, that but 
for this unfortunate statement regarding judicial decisions, 
Roosevelt would have been elected President in 1912." 

2 Speech in 1902 at dinner of the Bar in honor of Associate 
Justice Harlan. 

3 LaFollette's Speech, Senate Document, p. 14. 



M Hamilton Mere J^ere ®o=©aj> 141 

forty-five other State Constitutions, may be as 
logically argued to reflect a vast majority opinion 
in America to the contrary. Further; there is not 
a State in the Union — not even Wisconsin, largely 
under the influence of the chief Nullificationist of 
to-day — which has ever written into its Charter, 
a provision permitting the State Legislature to 
ignore the State Supreme Court and review the 
Constitutionality of its own Acts. If the scheme 
possesses the remotest element of virtue, why has 
it not been tried out in one of these smaller, la- 
boratory units? Listen again to Hamilton l : " If it 
should be said that defects in the State Constitu- 
tions furnish no apology for those which are to be 
found in the Federal Constitution, I answer, that 
as the former have never been thought chargeable 
with inattention to the security of liberty, where 
the imputations thrown on the latter can be shown 
to be applicable to them also, the presumption is 
that they are rather the caviling refinements of a 
pre-determined opposition than the well-founded 
inferences of a candid research after truth." 

Another thing! If there is a thoroughly sincere 
Congressional belief that the Supreme Court 
should have less authority in the determination of 
the Constitutionality of legislation, why does Con- 

1 The Federalist, No. 61. 



142 M Hamilton Were Here tCo=33ap 

gress so frequently avoid the responsibilities, which 
it already possesses, of closely scrutinizing the 
Constitutionality of its own Acts before passing 
them up to the Supreme Court for legal review. 
Is it not the blunt truth that many a Legislator 
votes for unconstitutional legislation, knowing it is 
unconstitutional, but knowing also that the Su- 
preme Court will stop the meditated blow, and 
preferring that the Court should relieve him of the 
brunt of criticism from those whom such an ulti- 
mate verdict disappoints? 1 With this brand of 
political timidity in the Legislature, be the degree 
ever so small — would it be wise to leave the Con- 
stitution wholly at the mercy of such self-serving 
cowardice? 

The fact that "the integral history of the coun- 

1 "This is just a little Congressional trick. When the 
people want any reform, like child-labor regulation, for 
instance, a Congressman or Senator may win great fame as 
a reformer by supporting it, laughing up his sleeve all the 
time. He knows the Supreme Court will declare it uncon- 
stitutional. The clearer its unconstitutionality, the safer 
he is in shouting for it. You, the voters, don't know it is 
all a bluff. But he does. . . . This is bad for the coun- 
try. It is bad for Congress. It makes hypocrites of Con- 
gressmen. It makes goats of the public." — Editorial, 
Washington News, August 28th. This paper, however, uses 
this exhibit to justify an argument in favor of permitting 
Congress to settle the Constitutionality of its own Acts, 
thus to end "artful dodging." 



M Hamilton Witvt $$txz ®o=JBap 143 

try would have been little altered, had the Court 
not possessed or exercised its power to void un- 
constitutional Acts of Congress," 1 does not vitiate 
the presumption, or at least the danger, that the 
absence of the power might have licensed invasions 
of Constitutional rights, which the existence of the 
power discouraged. 2 

All in all, this new proposal in nullification — 
innocent as it may appear upon the surface — is so 
thoroughly bad that every loyal Constitutionalist 
must face it with uncompromising hostility. Under 
it, the Constitution would become mere flotsam 
and jetsam on the seas of shifting prejudice. Who 
wants to argue that any such pitiful uncertainties 
hold promise of advantage for any citizen of hon- 
est purposes and healthy aspirations? Who would 
really pretend that there is advantage for America 
in the destruction of those guaranties, under 
which no dictator, individually or collectively, 
can Mexicanize the United States, or paraphrase 
the French Louis with his disdainful proclama- 
tion— " The State! It is I!" If Nelson Aldrich 
or Boies Penrose, in the hey-day of their conser- 

1 The Supreme Court in United States History, by Charles 
Warren, i, 16. 

2 During the Court's first eighty years, only four Federal 
statutes were held unconstitutional. From 1869 to 191 7, 
thirty-two Acts of Congress were held unconstitutional. 



144 3K Hamilton Mere Sfere ®o=23ap 

vative power, had proposed this sort of thing, 
their radical critics would have torn them literally 
to shreds for daring to propose a treacherous expe- 
dient under which " special privilege* ' would have to 
control but one Congressional election in order 
absolutely to dominate the United States and write 
its uncensored ultimatum into the lives of a defense- 
less people! If some Bourbon, in the days of the 
foundation, had stressed such a program as this, 
making easy a coup to grasp the unchecked reins of 
Government and over-ride any Constitutional 
guaranty which might embarrass the designing 
frenzy of a disloyal cabal, he would have been 
scourged from the forum as a Tory plotting the re- 
currence of Kings. The project does not suddenly 
take on the habiliments of virtue now, simply 
because it is offered in the name of "the peoples' 
rights." The leopard does not change its spots. 
Nullification's authors thunder against the " oli- 
garchy" of the Judiciary ; but it is they who propose 
the real "oligarchy" — an "oligarchy" of politicians 
who shall find nothing standing between them and 
autocratic power. Their formula would better 
serve the impatience of a Commune than the rela- 
tive equanimity of a representative Republic: 
tools for Moscow, rather than for Washington. 



Justice anb infcmsitrp 

"Is it too early for politicians to presume on our for- 
getting that the public good, the real welfare of the great 
body of the people, is the supreme object to be pursued; and 
that no form of Government whatever has any other value 
than as it may be fitted for the attainment of this object?" 
— The Federalist, No. 45. 

'Why has Government been instituted at all? Because 
the passions of men will not conform to the dictates of 
reason and justice, without constraint." — The Federalist, 
No. 15. 

' ' A power equal to every possible contingency must exist 
somewhere in the Government." — The Federalist, No. 26. 

If the logical conclusions from the last chapter 
recommend that we retain all such guaranties of 
ordered justice as have been erected through more 
than a century of American wisdom and experience, 
the logical conclusions from this chapter must 
recommend a courageous quest for still more of 
these guaranties in fields where they are wholly and 
fatally lacking. The time probably has come 
when Government must recognize the public char- 
acter of essential industries upon which American 
10 i 45 



146 M Hamilton IBere ^ere ®o=2Bap 

life and livelihood depend. The time has come 
when candor cannot dodge the truth that there 
are certain classes of strikes and lockouts which 
are vastly more of a threat to American homes and 
the welfare of the bulked American people, than 
any foreign navies that ever nosed ominously in our 
direction. The time long since came when Gov- 
ernment recognized, so far as Capital is concerned, 
the public character of certain basic industries and 
commanded them to abide the mandates of public 
supervision and control. 1 The time now is here 
when Government must recognize this same public 
character so far as Labor is concerned, and order 
kindred concession to the common weal. The rule 
must work both ways. Nor, in thus bringing Labor 
within its scope, is the rule threatening conscrip- 
tion. Labor is quite as free as Capital — more so, 
usually — to seek other fields of operation if it dis- 
likes the restraints occasioned by the necessary 
consultation of the public welfare. The American 

1 In Munn v. Illinois, 94 U. S., 113, Chief Justice Waite 
said: "Property does become clothed with a public interest 
when used in a manner to make it of public consequence, 
and affect the community at large. When, therefore, one 
devotes his property to a use in which the public has an 
interest, he, in effect, grants to the public an interest in that 
use, and must submit to be controlled by the public for the 
common good, to the extent of the interest he has thus 
created." 



3f Hamilton Mere 2£ere ®Q=2Sap 147 

people will not tolerate strikes among municipal 
policemen, for example, because of the character 
of their work and because of organized society's 
unescapable dependence upon the uninterrupted 
service rendered. 1 Yet, because of this tacit con- 
straint, we do not look upon policemen as con- 
scripts ; nor would there be the remotest logic in 
such a simile. Topsy-turvy nonsense would have 
reached a lugubrious climax, if the acknowledg- 
ment of paramount responsibility to the needs of 
organized society, could be heralded as an act of 
degradation. On the contrary, it is a factor of dis- 
tinction. It should be so rated. And in what- 
ever degree this factor of public responsibility 
enters any field of Labor — whether in the mining of 
coal, without which life cannot exist, or in the 
maintenance of transportation, without which 
livelihood suspends, or in any other kindred essen- 
tiality — an equivalent measure of protection, not 
for Capital, but for the public, must stand in Law. 
By the same token, having undertaken thus to 
create a special Labor classification, with particu- 
lar reference to public need, and having under- 

1 This axiom was proven once and for all in Boston 
where a timely display of American spine builded the then 
Governor of Massachusetts, Calvin Coolidge, into a poten- 
tial Vice-President of the United States. 



148 M Hamilton Were Here ®o=Bap 

taken to shut it off from the usual and traditional 
recourse to strikes through which Labor is ac- 
customed to attempt to make itself articulate, the 
same Law must create new agencies — agencies for 
industrial justice — committed to the plain-spoken 
proposition that Labor, thus employed, shall have 
better and surer and safer and swifter means, under 
auspices of Government, for the complete adjudica- 
tion of industrial rights and the adequate protec- 
tion of a saving wage than Labor ever has had in its 
hazardous reliance upon the arbitrament of force. 
The achievement of this dual reform, on the broad 
scales of interstate commerce, will not only serve 
"the real welfare of the great body of the people/' 
which is "the supreme object to be pursued," but 
also it will ultimately redound to the economic and 
social advantage of every element of Labor brought 
within its jurisdiction, with the single possible 
exception of the well-paid gentlemen who, con- 
stituting Labor's "War College," may consider 
the tenure of their jobs somewhat dependent 
upon perennial rebellion and perpetual mili- 
tancy. 

There was no emphatic Labor union movement, 
of course, in the days when the Fathers evolved the 
American system of Government and society. The 
country consisted chiefly of "the cultivators of 



M Hamilton KJere 1&txt ^o=3aap 149 

land. ' ' l These great agrarian interests, fortunately 
for America, were not strikers, in the modern ac- 
ceptation of that term. The modern industrial 
problem, as it perplexes us, was substantially 
unknown. The Founders, however, were not 
hemmed by a vision which could see nothing be- 
yond experiences immediately at hand. On the 
contrary, The Federalist itself bespoke the day 
when agriculture should cease to be "the sole field 
of labor," when "domestic manufactures are begun 
by hands not called for by agriculture," and when 
"in an even more remote stage, the imports may 
consist in a considerable part of raw materials, 
which will be wrought into articles for exporta- 
tion." 2 "A system of Government, meant for 
duration, ought to contemplate these revolutions," 
it declared, "and be able to accommodate itself to 
them." In other words, though it could not speak 
other than in generalities concerning industrial 
evolution which it could treat only in prophecy, 
The Federalist did not fail in admonitions which 
require no stretch of the imagination to make 
industrially applicable to-day. 

Despite this lack of actual contemporary, in- 
dustrial development, Alexander Hamilton was able 
to write his famous "Report on Manufactures" in 

1 The Federalist, No. 60. 2 No. 41. 



150 M Hamilton Wtvt $$txz ©o=23ap 

1 79 1 — the most profound economic paper ever 
created by an American statesman — and to lay 
down the first foundation principles of tariff protec- 
tion as applied to American industry then not yet 
created. He was able to forecast and found the 
modern industrial city of Paterson, New Jersey. 
He was able to sense the future. But, meanwhile, 
everything he said and did in relation to the im- 
mediate problems of his time, was so clearly the 
reflection of some great foundation principle and 
so emphatically the embodiment of some prescient 
rule of general American conduct, that it requires 
no particularly bold or presumptuous interpreter 
to conclude what he would say and do if he were 
here to-day. Just as he was unwilling to leave 
the commercial welfare of the United States at the 
mercy of "combinations, right or wrong, of foreign 
policy," 1 he would be no less unwilling to leave it 
wholly to the vagaries of " combinations, right or 
wrong, of domestic faction" and just as he refused 
to absolve Government itself from a fundamental 
responsibility for the maintenance of successful 
commerce, he would as readily refuse to absolve 
Government from a fundamental responsibility for 
the maintenance of uninterrupted commerce in es- 
sential industries. Just as he was always impatient 
1 The Greatest American, by A. H. Vandenberg, 199. 



M Hamilton Mere 3^ere <Eo=3Bap 151 

of any aim or vision or quest which did not ac- 
knowledge the horizon of all America, he would be 
impatient to-day of any industrial view-point 
which did not first consult the greatest good of the 
greatest number and put the essential advantage of 
mass-America ahead of any and all less com- 
prehensive considerations. Just as he was the 
pioneering draftsman who charted the original 
structure for practically every department and 
necessity of the Government and of his time; just 
as he himself never hesitated to chance a percent- 
age of failure, if he could see a major advantage to 
be gleaned from experiment in new directions cal- 
culated to involve ultimate utility, it is as sure as 
any speculation can be that, if Hamilton were here 
to-day, he would shake the hand of Governor 
Henry J. Allen of Kansas, congratulate him upon 
the pioneering courage with which he has blazed 
new trials for the Kansas Industrial Court Code, 
and, though he might disagree in administrative 
particulars, he would applaud the fundamental 
purpose of the plan to give "The Party of the Third 
Part," the great American public, its legitimate 
share of consideration and protection in industrial 
disputes involving the necessities of life. 1 There 

1 See The Party of the Third Part, by Governor Allen. 
Concluding his argument, pp. 282-283, Governor Allen 



152 M Hamilton Were Tfytxt aro=®ap 

can be no sustained denial that this general doc- 
trine squares absolutely with the bases of American 
Government, and there can be no doubt that a 
modernized Federalist would sternly urge further 
strong-footed experiments, particularly under 
Federal auspices, in the development of industrial 
peace through adjudicated industrial justice. If 
it had no other rule to quote, it could rest upon 
"this plain proposition, that the peace of the 
WHOLE ought not to be left at the disposal of a 
PART." 1 

The recent coal and railroad strikes in the 
United States have initiated a new era of intense 
public interest in these matters. It can be said 

says: "The rights and welfare of the public must be 
paramount. No special interest shall dominate America. 
Class-mindedness and class rule have no place in American 
Government. Autocracy of Capital and autocracy of 
Labor must be held sternly in check, alike. There shall be 
no invisible Government. Labor must be given a square- 
deal by society. This is not only in justice to Labor, but it 
is a matter of self-preservation for the general public. A 
greater measure of employee representation and personal 
contact between employer and employee must be had. We 
are still testing whether a Government such as ours can long 
endure. In order to endure it must be based on the self- 
evident truths of the Declaration of Independence. This 
means that the people must always be supreme and that 
no minority tyranny shall be set up." 
1 The Federalist, No. 80. 



M Hamilton ffliere J^ere ®o=®ap 153 

with the same literal truthfulness to-day as it was 
set down in The Federalist fourteen decades back ' : 
"The sober people of America are weary of the 
fluctuating policy which has directed the public 
councils." They cured their fluctuations, then, 
by apportioning the means of Government to the 
end in view: "the persons, from whose agency the 
attainment of any end is expected, ought to pos- 
sess the means by which it is to be attained." 2 We, 
to-day, can scarcely hold our modern "public 
councils" to accountability for "fluctuating poli- 
cies" unless we, too, shall apportion Governmental 
means to the industrial ends in view — justice and 
peace through compulsory adjudication, in essen- 
tial industries. Except as we profit by our ex- 
periences, insist upon making the life of the WHOLE 
Nation paramount to the selfishness of any PART, 
make both peace and justice mandatory, and 
clothe the Government with authority in kind, how 
can we expect its administration to "be anything 
else than a success of expedients, temporizing, im- 
potent, disgraceful? How will it be able to avoid a 
frequent sacrifice of its engagements to immediate 
necessity? How can it undertake or execute any 
liberal or enlarged plans of public good?" 3 

1 No. 44. 

2 The Federalist, No. 23. 3 Ibid., No. 30. 



154 3tf Hamilton Here Here ®o=Bap 

In his strike message to Congress, August 18, 
1922, President Harding pronounced this axiom in 
ordered democracy : 

"We must re-assert the doctrine that in this 
Republic the first obligation and the first allegiance 
of every citizen, high or low, is to his Government, 
and to hold that Government to be the just and un- 
challenged sponsor for public welfare, and the 
liberty, security and rights of all its citizens." 1 
This doctrine must be accepted into the American 
consciousness or it is impossible for us to hope for 
progress toward goals of industrial amity. It is 
not a new doctrine. The Federalist 2 emphasized 
"the necessity of sacrificing private opinions and 
partial interests to the public good"; and it 
demonstrated 3 how a common necessity frequently 
has compelled "Nations, the most attached to 
liberty, to resort for repose and security, to in- 
stitutions which have a tendency to destroy their 
civil and political rights." Listen to this: "TO 

1 With specific reference to the railroad strike, President 
Harding added: "No matter what clouds may gather, no 
matter what storms may ensue, no matter what hardships 
may attend or what sacrifices may be necessary, Govern- 
ment by Law must and will be sustained. Wherefore I am 
resolved to use all the powers of the Government to main- 
tain transportation and sustain the right of men to work." 

2 No. 37. 

3 The Federalist, No. 8. 






M Hamilton JUIere l&txt ®o=Bap 155 

BE MORE SAFE, THEY AT LENGTH BE- 
COME WILLING TO RUN THE RISK OF 
BEING LESS FREE !" Freedom, in other words, 
is to be measured by quality rather than quantity. 
The abstract privilege of being free, is worthless 
except as it creates and perpetuates new advan- 
tages and new blessings. "The proof of the pud- 
ding is in the eating " — to quote a homely bromide. 
Whenever the use of " freedom' ' tends to impair 
these advantages and blessings, it serves but the 
shadow and neglects the substance of " freedom." 
The saddest error democracy can make is to disre- 
gard the barriers between "liberty" and "license." 
The " freedom" of the individual must stop at 
the dead-line where it threatens to intrude upon 
the ' ' freedom ' ' of his neighbor. The ' ' freedom ' ' of 
groups and classes must stop at the dead-line where 
it threatens to intrude upon the "freedom" of 
other groups and other classes. And, certainly, 
the " freedom," either of individuals or of groups 
and classes, must stop at the dead-line where it 
threatens to invade the "freedom" and the rights 
of the mass-majority of American citizens. Nor 
can the men of industry and the interests of com- 
merce expect to hold themselves immune to these 
basic contemplations in ordered liberty. When 
strife in industry becomes a menace to general life 



156 M Hamilton Were J^ere ®o=J@ap 

and livelihood, it becomes a menace to ordered 
freedom; it becomes a challenge to Government — 
if Government be worthy its name. In such cir- 
cumstances, it is the business of Government to 
assert the paramount sovereignty of the general 
welfare, and to serve it with whatever machinery 
the necessities of justice and peace may require. 
Nothing could be more fundamental than this in 
the scheme and the theory and the purpose of 
American Government. If, in the operation of 
this doctrine, some of us seem to give up some 
theoretic element of " freedom," let us be very sure 
that we do not gain a practical and advantageous 
element of ' 'safety" in return therefor, ere we lend 
ourselves to unthinking opposition. "Men, upon 
too many occasions, do not give their own under- 
standings fair play ; but, yielding to some untoward 
bias, they entangle themselves in words and con- 
found themselves in subtleties." 1 

Somewhere, in a complex society like ours, there 
must rest an ultimate, universally accepted trust in 
a final power of leadership and decision when citi- 
zens — individually or in groups — disagree as to 
their rights and privileges. Otherwise, we are not 
a Nation, committed to common destiny. We are 
not a United States. We are the mere guerilla 

1 The Federalist, No. 31. 



M Hamilton Mere J^ere ®o=2Sap 157 

victims of Untied Hates. For more than a century 
we have all peacefully consented that Courts — the 
badge of Government — should decide between us 
when we have disagreed with one another over our 
rights to property, over our civil and criminal con- 
duct, even over our penal liability to be detained 
in public jails. No sane man remotely suggests 
the elimination of Courts — the badge of Govern- 
ment — to decide our arguments and control our 
personal destinies in all of these functions involv- 
ing the most sacred elements of life and livelihood. 
Imagine, if you can, a state of society wherein the 
disputed title to a man's home should be decided by 
a vendetta between families! Imagine a state of 
society wherein the liability for alleged crime 
should be settled by a duel in which stray bullets 
mowed down those forced to look impotently on! 
We outgrew this primitive code centuries ago. 
Why, then, is it impossible that the " industrial 
relation" — surely no more vital than all these other 
prerogatives which we freely submit to judgment 
by Government — alone should be an exception to 
the rule of reason? 

These parallels are not overdrawn. The "ven- 
detta between families" would not be unlike the 
vendetta between warring groups, generically called 
"Capital" and "Labor," each time we submit an 



158 M Hamilton ffllere Here ©o=©ap 

industrial dispute to the arbitrament of " strike' ' 
or ' ' lock-out. ' ' The ' ' duel ' ' with its * ' stray bul- 
lets" would not be unlike the fruits of violence and 
the scars of bitterness which trade-mark every one 
of these reversions to industrial rebellion. Few 
indeed are these wars which do not cost even their 
victors vastly more than is their final gain. None, 
in essential interstate industries, but costs the 
whole people a vast, dead, and uncompensated loss. 
Why, then, is it not best for all concerned to hunt 
a substitute method for settling such controversy? 
Ninety-nine percent of all "strikes" and "lock- 
outs" result in ultimate compromise on the basis 
of some phase of arbitration. Why do we hesi- 
tate to insist that this recourse, under Law, shall 
be first instead of last? Who loses, whether "La- 
bor" or "Capital," when justice is done? Who 
gains when justice fails? How can we hope for 
"justice" in the midst of disagreement except as 
we find an Umpire we can trust? How can we 
ever hope for a surer, safer Umpire than the Gov- 
ernment in a representative democracy? And 
thus we come to the Harding doctrine again. 
There is no hope ahead except as we can all consent 
that Government is "the just and unchallenged 
sponsor for public welfare, and the liberty, security 
and rights of all of its citizens." 






M Hamilton Were S?ere QDo=3Bap 159 

The pertinence of chis doctrine was acknowl- 
edged by the Founders of the Nation. In those 
days, the threat of quarrels was between groups 
distinguished as States, rather than, as now, be- 
tween groups distinguished as industrial or labor 
interests. "In cases where it may be doubtful on 
which side justice lies," declared The Federalist, 1 
"what better Umpires could be desired by two 
violent factions, flying to arms and tearing a State 
to pieces, than the representatives of confederate 
States not heated by the local flame? To the im- 
partiality of Judges, they would unite the affection 
of friends. Happy would it be if such a remedy for 
its infirmities could be enjoyed by all free Govern- 
ments; if a project equally effectual could be es- 
tablished for the universal peace of mankind. " 
The analogy is perfect. Can there be much doubt 
what Hamilton would say and do if he were here 
to-day? 

We must differentiate between essentially pri- 
vate and essentially public industry. The time 
will never come when either logic or necessity or 
advisability will recommend any attempts to inter- 
ject the elements of compulsory industrial arbitra- 
tion into private business. This would smack of 
thoroughly un-American paternalism. Only when 

1 No. 43. 



160 M Hamilton Mere ^ere ^o=2Sap 

the element of the "public welfare" enters the in- 
dustrial equation — in a broad and commanding 
way — does the situation challenge public attention. 
But whenever industrial disagreements between 
Capital and Labor enter this latter realm, they 
fall squarely within the doctrine that the "public 
welfare" must control, else the theory of the "free- 
dom" of the majority is a farce; and they should 
be required, by impressively effectual statutes, to 
submit themselves to the jurisdiction of Industrial 
Courts. "The Government of the United States 
has been emphatically termed a Government of 
Laws and not of men." ■ 

One of the new phrases, created by modern in- 
dustrial conditions, is "collective bargaining." It 
generically describes Labor's right to deal with 
Capital as a unit. It is a thoroughly sound and 
legitimate and American method. It was a real- 
ization of the need for " collective bargaining" 
among the erstwhile American Colonies — the need 
for one, united, composite, puissant mouth-piece 
for the Nation, in dealing with other Nations — 
which really inspired the organization of Govern- 

1 The immortal language of Chief Justice Marshall in 
Marbury v. Madison, paraphrasing the Massachusetts 
Constitution of 1780 — "To the end that this shall be a 
Government of Laws and not of men." 



M Hamilton Were %ere ®o=2Sap 161 

ment as we know it. The Founders recognized 
this political and diplomatic need for " collective 
bargaining." They argued that lack of it left 
equity and fair-play at the mercy of superior force 
regardless of its virtue. ' The situation, with re- 
gard to the needs of modern Labor, is wholly 
parallel. In the large industrial operations which 
we discuss, the " employer" invariably is a power- 
ful corporation. The " employee/ ' as an individ- 
ual, is a relatively impotent person. Only by the 
process of " collective bargaining" — no matter 
what the agency therefor — can the "employee" 
hope to equalize this differential and put himself in 
position reasonably to cope with an "employer" 
who is disinclined to do justice. "Collective bar- 
gaining" thus becomes an essential to the preserva- 
tion of the industrial rights of Labor, as it was to 
the conservation of the political rights of the origi- 
nal United States. A doctrine with such honorable 
credentials and antecedents should require no con- 
test to support its legitimate acknowledgment in 
modern, industrial application. 

But to pretend that there is the slightest incom- 

1 "It is well known that acknowledgments, explanations 
and compensations are often accepted as satisfactory from a 
strong, united Nation, which would be rejected as unsatis- 
factory if offered by a State or Confederacy of little con- 
sideration or power." — The Federalist, No. 3. 



11 



162 3f Hamilton Mere ?£ere ®o=®ap 

patibility between legitimate "collective bargain- 
ing' ' and legitimate "compulsory arbitration' ' in 
relation to essential industries, is nonsense. When 
spokesmen for Labor attempt to repel the latter on 
the theory that it ravishes the former, they either 
ignore fundamentals or they misconceive the 
proprieties of power. They ignore fundamentals 
because the very essence of "compulsory arbitra- 
tion" 1 is the creation of a lawful forum to which 
Labor can come, not timidly, not with uncertain- 
ties, but with guaranteed assurances that it will 
meet Capital on a level, and that "employer" 
and "employee" will stand in even scales before 
the bar of industrial justice. On the other hand, 
if it is a misconception of the proprieties of power, 
which confuses these gentlemen, it should be set 
down once and for all time that ' ' collective bargain- 
ing" does not mean "collective dictation." Nor 
does it mean "collective immunities" — whether 
for Labor or for Capital. Nor does it mean "col- 
lective impudence." Nor does it mean "collective 
lawlessness. ' ' With all of these latter things ' ' com- 
pulsory arbitration" is at war. But, in this war, 
it is on the side of the public welfare. It is on the 

1 Wherever this phrase henceforth is used, let it be under- 
stood to apply strictly and solely to essential industries 
which involve the public welfare. 



Iff Hamilton Klere ©ere Co=Sap 163 

side of law and order. It is on the side of adju- 
dicated justice. It is on the side of established 
right and proven equity. Therefore, it is on the 
American side, the Constitutional side; and it is 
the true friend of the true principle of "collective 
bargaining" — because the greatest danger to this 
great principle threatens more from those who 
would abuse it than from those who would ignore 
and deny it. 

No man, no matter what his immediate station 
or class, can afford dissent to this interpretation, 
because the dissent which to-day may seem a 
temporary advantage, may rise up to-morrow to 
curse and oppress him, in changed circumstance, 
as a result of the precedent he has encouraged. 
The use of an unfair power, the denial of an 
equitable adjudication, the resort to an extra- 
legal weapon in furtherance of the aspirations 
of any industrial belligerent, is unenlightened 
selfishness because, borrowing the language of 
the street, no man can tell when his "chick-ens 
will come home to roost." Thus, for instance, 
President Harding had to say, in the strike 
message to which we have referred, that when 
he learned of the fact that certain railroads had 
Bel a fashion for ignoring the mandates of the 
United States Labor Board, he "could more fairly 



1 64 M Hamilton 2Uere l&txt tKo=®ap 

appraise the feelings of the strikers," who them- 
selves subsequently ignored the Board, "though 
they had a remedy without seeking to paralyse 
interstate commerce.' ' On the other hand, what 
an awful precedent was set by certain misguided 
factors among railroad strikers when they revealed 
their cruelty and contempt for Law by marooning 
helpless women and children on stalled trains in a 
western desert, or when they pulled thirty-seven 
spikes from a track one mile east of Gary, Indiana, 1 
and precipitated a wreck which combined murder 
with sabotage! Is there any question where the 
"public welfare" is involved in such contempla- 
tions as these? And what a precedent, when 
crazed criminals, prostituting the name of Labor, 
grimly and ruthlessly staged the atrocities in the 
Herrin coal fields 2 which brought this verdict from 
a Grand Jury: "The cruelties of the murders are 
beyond the power of words to describe; a mob is 
always cowardly, but the savagery of this mob in 
its relentless brutality is almost unbelievable; the 
indignities heaped upon the dead did not end until 
the bodies were interred in unknown graves." 
The imagination is numb in the contemplation of 
what would happen in the event of industrial "reci- 

1 August 20, 1922. 

2 June 22, 1922. 



M Hamilton Mere 3#ere Qi:o=2Sap 165 

procity" in such circumstances! Yet it is a poor 
rule which does not work both ways ! 

The trouble is that we have left " collective bar- 
gaining' ' too much to its own initiative and re- 
sources in solving industrial dilemmas. If the Law 
shall chart the courses which " collective bargain- 
ing" must follow, the Law will largely prevent ex- 
cesses which, now, it can only undertake to punish 
in retrospect, after all the damage has been done. 
Men frequently have to be saved from themselves. 
"A spirit of faction, which is apt to mingle its 
poison in the deliberations of all bodies of men, will 
often hurry the persons of whom they are composed 
into improprieties and excesses, for which they 
would blush in a private capacity,' ' said The 
Federalist. 1 It is this rule of human nature which 
causes most of the trouble when uncharted "col- 
lective bargaining" is left to its own indiscretions. 
Let there be no mistake about the fact that in time 
past, Capital has been guilty of just as startling 
excesses as Labor, in many of these respects. 
Whenever these abortive episodes occur, it is in- 
variably a small and unrepresentative minority 
which is responsible for all the grief. The cause 
these minorities thus pretend to serve is usually 
the greatest sufferer of all when the balance sheets 

'No. 15. 



166 M Hamilton Mere l&txz ©o=3Uap 

of casualty are finally struck. Therefore, when 
the process of "collective bargaining" is reduced 
to a legal formula, involving "compulsory arbitra- 
tion" in essential industries, the best interests of 
those who demand "collective bargaining' ' enjoy 
a new element of stabilizing protection. When 
industrial justice, in essential industries, is reduced 
to a code, not only does the public welfare — the 
paramount concern — receive the consideration 
which is its due, but the legitimate rights of every 
person and group, involved in any industrial dis- 
pute, are guaranteed the surest and the most 
honorable and the most equitable protection which 
human minds can conceive. 

One great difficulty which this whole subject of 
"compulsory arbitration" has constantly faced, 
lies in the notion that it is aimed at the re- 
pression of Labor. Labor naturally looks askance 
at any proposition which seems to wear this guise. 
"Men often oppose a thing," said The Federalist 1 
"merely because they have had no agency in plan- 
ning it, or because it may have been planned by 
those whom they dislike." But, why not consider 
the erection of a new Industrial Jurisprudence, in 
the light of an affirmative effort to provide Labor 
itself with a new and a powerful and a sure method 

1 No. 70. 



3f Hamilton Mtxt J^ere ®o=21ap 167 

of gaining an acknowledgment of its industrial 
rights, as related to wages and working conditions? 
Why not consider it as the creation of a new forum 
wherein Labor's 'Right of Industrial Petition" 
shall be as sacredly preserved as is its " right of 
petition," under the Constitution, in regard to 
affairs of Government and public relations? In 
this view, is it not a stupendous step forward — 
just such a step as the Founders of America would 
have sought to negotiate, if our problem had been 
theirs? 

If we analyse industrial history critically we 
find that the original, mechanical cause of friction 
between Capital and Labor is the lack of a fixed 
means of address and communication and adjust- 
ment, in relation to wages and working conditions, 
between the two. The mere fact that the means 
have been lacking — originally leaving Labor at 
Capital's mercy, just as, ultimately, Capital is at 
Labor's mercy — breeds subconscious class discon- 
tent. It is an invisible yoke which is irksome and 
undemocratic. It suggests helplessness and in- 
vites a vague and uneasy quest for emancipation. 
This has been the seed of trouble. When Labor 
has sought betterments, it has faced one of two 
alternatives; (1) to have its petition voluntarily 
favored by Capital, or (2) to fight to force invol- 



1 68 3f Hamilton Mere T&txt ^o=®ap 

untary favor. There has been no legally estab- 
lished protection for this RIGHT OF INDUS- 
TRIAL PETITION— until the experiment was 
timidly tried through the medium of the Railroad 
Labor Board. When, therefore, it is proposed to 
set up the legal machinery which shall guarantee 
Labor's RIGHT OF INDUSTRIAL PETITION, 
it is, in reality, the creation of new and vast safe- 
guards for the advantage, rather than for the re- 
pression, of Labor. Why should not the erection 
of a Federal Industrial Judiciary, serving essential 
interstate industries, be viewed in this light? If 
it had originally been proposed by Labor itself, for 
this primary object, is it not probable that the 
plan would have been thus estimated? 1 

In all his relations to his Government, the man 
of Labor is protected by inalienable " right of peti- 
tion" which eternally provides him an unhampered 
avenue of address to the powers set over him in 
our institutions. The first Amendment to the 

1 When the author first presented this ' ' Right of Industrial 
Petition" plan several years ago in Collier's Weekly and in 
Henry Ford's Dearborn Independent, one of the most promi- 
nent representatives of organized Labor in the country wrote 
the Editor of The Independent in part as follows: "Mr. 
Vandenberg has laid down the chart; please find the ship- 
builders and the port of safety for the workers to sail to, 
and you will have done much to make the world safe for 
industrial democracy." 



M Hamilton Hlere l&zvt ®o=Bap 169 

Constitution of the United States prohibits any 
abridgment of "the right ... to petition the 
Government for a redress of grievances. " This is 
the citizen's assurance of his legal opportunity to 
present his prayers to duly and legitimately con- 
stituted authority. He needs organize no mob to 
establish his right to be heard,, It is a fixed right — 
acknowledged in the procedure of every Govern- 
mental tribunal in the land. It is to be found in 
the Constitution of every State. This " right of 
petition'' goes back to Magna Charta and King 
John. It permeates every subsequent charter of 
liberty. It is the key-note in every Bill of Rights. 
It is a human answer to human aspirations. It is 
original to, rather than derivative from, "free 
speech." As one author puts it: "It forms an in- 
dispensable part of the liberty enjoyed by every 
Anglo-Saxon." Denial of the "right of petition" 
has caused more than one political revolution. 
From 1835 to 1844, Congressional friends of slav- 
ery sought to deny the "right of petition" to 
northern abolitionists. They thereby forced a 
phase of the issue which was bound to overwhelm 
them. Henry Clay, himself friendly to slavery, 
appreciated this situation and pleaded that the 
1 ' right of petition ' ' be not ignored. ' ' The servants 
of the people," said he, "should examine, deliber- 



170 M Hamilton Mere Here ©o=3Bap 

ate and decide either to grant or refuse the prayer 
of a petition and to give the reason for the de- 
cision. This would carry conviction to every mind, 
satisfy the petitioners, and have the best effect in 
putting an end to the agitation of the public mind 
upon the subject. " The "right of petition" is 
inherent in practical democracy — doubly so in 
representative republicanism. To remove it 
would be to establish a popular cloture which 
would breed, first irritation, then protest, and 
finally revolt. Why should we expect any dif- 
ferent human process when there is no guaran- 
teed "right of petition" in industrial affairs? And 
if the RIGHT OF INDUSTRIAL PETITION— 
analogous to the right of Governmental petition 
— shall be established by Law, why should not the 
basic cause of irritation between Capital and Labor 
disappear; with it, the necessity or excuse for 
protest; and, finally, the revolt — which may be a 
strike on the one hand, or a lock-out on the other? 
Our troubles started back in the beginning of things 
— at the point where Labor found itself devoid of 
any means to secure ' ' redress of grievances ' ' except 
such means as it could itself devise. Defensive 
unions were as logical as that two and two make 
four: then strikes by these unions were as logical as 
that four and four make eight. There was no 



3f£ Hamilton fflere l&txz ©o=3Bap 171 

other way for Labor to COMMAND attention to 
its industrial petitions for what the Constitution 
calls "redress of grievances." The great lack, 
from Labor's view-point, was a fixed and legal 
protection for the RIGHT OF INDUSTRIAL 
PETITION. If, now, we propose to supply this 
century-old omission, and to erect Federal forums 
for the compulsory adjudication of these industrial 
grievances, and to protect the RIGHT OF 
INDUSTRIAL PETITION, why is it not one 
more great step forward in the perfection of a 
better functioning representative democracy? 
Why, above all things, should it be considered 
inimical to Labor? 

Labor can never be asked to yield its right to 
strike until some other and better and surer pro- 
cess is provided to guarantee legitimate attention 
to this RIGHT OF INDUSTRIAL PETITION. 
But when the substitute is once created, Labor 
should be the first to embrace it because, taken as 
a whole, the strike is not providing an economical 
or as effectual weapon. It is losing as much, if not 
more, than it gains — particularly in industries 
affecting the public welfare. From 19 16 to 
192 1 inclusive, according to Government statistics, 
there were 10,254 strikes in the United States. 
This is the score which indicates the nature of their 



172 3f Hamilton Were ?£ere ©o=®ap 

conclusions: won by employers, 3,515; won by 
employees, 3,112; compromised, 3,627. What 
could more eloquently demonstrate the futility of 
industrial rebellion? The science of life insurance 
has taught us that mortality tables are a safe 
criterion by which to measure expectancy. What 
is the lesson of the mortality tables of strikes? 
That those engaged therein, whether on one side or 
the other of the equatiorf, have just one chance in 
three of victory. In other words, again borrowing 
the language of the street, the average strike, at 
best, is only a "three-to-one bet." If the good 
judgment of Americans does, not revolt against 
acceptance of such one-sided chance, the sporting 
sense should hesitate to embrace such an unequal 
speculation. 

These 10,254 strikes cost a total of 264,485 lost 
days of work. The computation of wages lost by 
Labor would be tremendous, and, in all human 
probability, would more than counter-balance all 
the incidental gains in the 3,112 strikes which 
Labor won. The computation of profits lost by 
Capital would be equally tremendous — and, in all 
human probability, would more than counter- 
balance all the savings in the 3,515 strikes which 
Capital won. Meanwhile, of course, the com- 
putation of wholly uncompensated public losses 



Ilf Hamilton lUtvc tycvc ^Co=Qap 173 

incidental to these strikes would complete a sad 
balance sheet. Why, in the face of such exhibits, 
should any advocate support the doctrine that 
strikes are a paramount advantage to anybody — 
least of all to Labor? Why should not Labor be 
among the first factors to demand of organized 
society that it find and create a better agency for 
protecting Labor's RIGHT OF INDUSTRIAL 
PETITION, for establishing industrial equity, for 
guaranteeing industrial justice, and, thus, for 
promoting industrial peace? 

A report issued by the Pennsylvania Bureau of 
liation and Arbitration puts the wage loss from 
strikes in that State during the first half of 1922 at 
5117.546,466, of which the sum of $114,562,914 
fell on striking miners. The New York Herald 
(August 31, 1922) presented a careful estimate 
indicating that the most recent strike in anthracite 
and bituminous coal fields will have cost the 
gering total of $1,190,000,000 ere it is wholly 
liquidated. Where is the compensation for this 
appalling loss? Where is Labor's compensation 
for S450, 000,000 in lost wages? Where is the 
public's compensation for the additional $400,000,- 

000 ■• 1 twelve-months 1 coal bill, caused by the 

■ of such disturbance? Why should 

an effort to provide a better, a surer, a peaceful, a 



174 3tf Hamilton WLtxt T&txt ®o=Bap 

comparatively costless means for establishing in- 
dustrial justice be spurned as a device favorable 
only to Capital? Capital lost but $40,000,000 in 
profits, according to this same coal strike compu- 
tation. Capital has less at stake, in a program to 
abjure strikes, than either Labor or the public. 
Capital, as a matter of fact, succeeds, sooner or 
later, in passing its losses on to the ultimate con- 
sumer. But what Labor loses, it loses; and what 
the public loses, it loses, once and for all. Why 
should not Labor and the public together be the 
two great forces seeking this new emancipation 
from the thraldom of industrial rebellion. Who 
won the railroad strike? Nobody! Every ele- 
ment connected with it lost, and lost heavily. 
Alexander Hamilton was the greatest economist of 
his time. If he had not insisted that America 
be organized on a basis of sound economic sense, 
America could never have survived the initial years 
of her great experiment. Is there any doubt what 
Hamilton's advice would be to-day, pertaining to 
this greatest of all elements of waste cursing the 
country internally? The strike method has failed 
miserably. Like a stone hatchet in the watch 
factory, it has no place in the finely ordered 
mechanism of present-day sociology and economics. 
It is a weapon of crude force — useful in a day when 



M Hamilton Mere J^ere &o=2Sap 175 

desperate defensive war-fare was needed as a last 
resort and there was no sensitive public conscience 
in the matter of industrial relations. In this day, 
when the public and its servants are keenly alive to 
the needs and rightful deserts of Labor — when 
the weapon kills helpless babies, invalids, and 
other innocent people and constitutes a real menace 
against the whole public — there is a better way. 
It points toward a better arranged freedom and 
the acceptance in greater measure of our great 
instrumentalities of American justice and fair- 
play. 1 The Founders faced the difficulty of 
composing differences arising between jealous 
States, rather than jealous industrial factions, and 
to these frictions they applied this logic. 2 "The 
pride of States, as well as of men, naturally disposes 
them to justify all their actions, and oppose their 
acknowledging, correcting or repairing their errors 
and offenses. The national Government, in such 
cases, will not be affected by this pride, but will 
proceed with moderation and candour to consider 
and decide on the means most proper to extri- 
cate them from the difficulties which threaten 
them." The same premise and the same conclu- 
sions recommend the national Government, func- 

1 Elmer T. Peterson writing in The Outlook. 

2 The Federalist, No. 3. 



176 M Hamilton Were Ifaztt ®o=23ap 

tioning through fixed tribunals, as the arbiter in 
industrial ructions. 

Many American newspapers have frequently- 
applauded the International Typographical Union 
as a type of worthy and useful Labor organization 
in all respects save those which have undertaken to 
limit production. How has this "I. T. U." chiefly 
succeeded in making the vast gains for itself which 
it has recorded in years gone by? Through 
strikes? Oh, no! First, by legitimate collective 
bargaining; second, by hard and fast contracts to 
arbitrate disputes; third, by the sacred execution of 
contracts resulting either from bargaining or 
from arbitration. There have been exceptions, of 
course, to this rule: but, in the main, they have 
but served to emphasise the rule itself. There 
has been no loose chatter about " slavery' ' or 
"conscription" because this branch of Labor has 
seen fit to acknowledge the propriety of settling 
industrial arguments by judicial interpositions. 
On the contrary, there has been a very general 
acknowledgment of vast advantage to this branch 
of Labor as the direct and specific result of these 
policies. But in 1921, this union launched upon 
a strike program to force the 44-hour work week 
in job printing shops. Whether the strike was 
justified, on the grounds of broken promises as 



M Hamilton ©Here l&tvz <Eo=2Bap 177 

claimed, is beside the point that is to be here made. 
Whether it was theoretically won or lost also is 
beside the point. The point is that up to August 
20, 1922, the strike cost the union in actual dis- 
bursements a total of $10,674,926.73 l and Presi- 
dent McPartland himself declared — "It will be 
seen that the cost of a strike financed as this has 
been, makes it almost prohibitive." If a com- 
putation of lost wages be added to the cost, the 
figures would give pause to the most belligerent 
of radicals. It is not a rash thing to venture the 
assertion that when the "I. T. U." finally balances 
its books, it will find that its conciliation policies 
have brought it infinitely greater advantage than 
its strike policies; and so long as employers and 
employees have the mutual disposition to be fair, 
this must always be the result. While this is an 
exhibit out of so-called private industry — and, 
therefore, outside the jurisdiction of the proposals 
which we are particularly stressing — it is pertinent 
to the main argument that the "right of strike" is 
not half as essential to Labor as is the effectual 
creation of other media through which to peace- 
fully protect and preserve the "right of petition." 

The whole question of unionism seeps into this 
situation and muddies the waters. But it does not 

1 Typographical Journal, September, 1922. 

12 



178 M Hamilton Mere Ifytxt ©o=20ap 

belong, as a controlling factor, in the discussion 
of new means to guarantee industrial justice, and 
then to outlaw strikes and lock-outs in essential 
industries. The very essence of Government- 
controlled justice bespeaks equality before the Law. 
The union, wherever it exists, would be entitled 
to its unprejudiced day in an industrial Court. 
It would be the logical attorney for groups which it 
might represent in these processes of collective 
bargaining. In fact, the Law under which the 
United States Labor Board was organized speci- 
fically recognizes the utility of unions for this 
purpose. On the other hand, if the Constitution 
means anything at all in relation to industrial free- 
dom, and if equality before the Law is anything 
more than a mockery, non-union Labor would get 
and should receive a similar acknowledgment of 
rights and privileges as free-born American citizens. 
Upon this proposition there can be no American 
compromise. It is fundamental that an American 
workingman has the right to conduct his wage 
negotiations through the spokesmanship of a 
Labor union if such be his desire; but it is no less 
fundamental that an American workingman has 
the right to accept non-union employment when 
and where it may be offered under terms and 
conditions individually acceptable to his own 



M Hamilton 3Uere ©ere <Eo=2Bap 179 

judgment. " Liberty is gone in America when 
anybody is denied by anybody the right to work 
and live by that work," President Harding de- 
clared in a speech on Independence Day at Marion, 
Ohio. ' "When a man in this country is not per- 
mitted to engage in lawful toil, whether he belongs 
to a union or not, with full protection and without 
interruption, the death knell to liberty will be 
sounded and anarchy will supersede organized 
Government," declared Attorney-General Daugh- 
erty in supporting the plea of the Department of 
Justice for an injunction in the railroad strike. 2 
There are sentences which would feature the very 
preamble of a new Federalist. They go to the 
roots of true American equality. They would 
emblazon the fundamental doctrines of a new 
industrial judicature. All Labor — union or non- 
union — would find equal and unprejudiced sanctu- 
ary in such a Governmental forum as this 
discussion envisions. The "open shop" and the 
"closed shop" would depend upon their merits, 
not upon their belligerent resources, for their 
power and their authority. President Samuel 
Gompers of The American Federation of Labor, in 
his 1922 Labor Day address, pleaded against such a 

1 July 4. K)22. 

; September i, 1922. before Judge Wilkerson. 



180 M Hamilton Were Here ®o=Bap 

forum, saying that " American citizenship must 
more firmly resolve to stand by the Declaration of 
Independence and the Constitutional guaranties of 
the Republic." What principle, pray, so com- 
pletely dominates the Declaration and the Con- 
stitution as the great, basic, American doctrine of 
equality? And where or how could equality be 
more faithfully served than in just such a forum as 
the country's enlightened common sense is rapidly 
coming to approve? 

President Gompers insists that "the right to 
cease work at will is one of a small group of rights 
upon which our whole civilization and our whole 
future progress must rest." ■ To a degree, he is cor- 
rect — though no more correct than he would be if 
he were to enunciate the equally fundamental 
doctrine that "the right to continue to work at 
will" is likewise basic to civilization and progress. 
To recognize the former "right" on behalf of 
organized Labor, but to deny the latter right to 
unorganized Labor, is an inconsistency that smacks 
of special pleading. But be this as it may, is there 
not still another axiom in democracy which under- 
lies both of the others? Must it not always be a 
cardinal doctrine that no "rights" inure to any 

1 Signed statement attacking the theory of all Labor 
Courts, Chicago Herald & Examiner, September 17, 1922. 







Alexander Hamilton. 

''Engraved by George Graham for James Rivington.) 

This is one of the most interesting of all the old Hamilton prints. It shows him in 
hi<? military maturity high Commander of the Armies of the United States. It is 
particularly illuminating in its relation to the spirit of this book because the ertist 
has titled him as "Camillus." 'Camillus," defending the Jay Treaty, "Publius," 
wriing the Federali !. and Alexander Hamilton are all one and the same. 



3f Hamilton Mere ^ere t!Co=3Bap 181 

individual or to any group which ever can tran- 
scend the mass "rights" of organized society as a 
whole? Must it not always be true, we repeat, 
as declared by The Federalist 1 that the " peace of 
the WHOLE ought not to be left at the disposal of 
a PART"? In other words, must there not be 
industrial situations in which "the public welfare" 
is paramount? 

This issue was framed in direct language in a 
debate between Mr. Gompers and Governor Allen 
of Kansas in Carnegie Hall, New York City, May 
28, 1920. In the course of the debate, Allen put 
this question to Gompers: "When a dispute 
between Capital and Labor brings on a strike 
affecting the production or distribution of the 
necessaries of life, thus threatening the public 
peace and impairing the public health, has the pub- 
lic any rights in such a controversy, or is it a private 
war between Capital and Labor?" There you 
have it : when a strike threatens the public welfare, 
is it a matter of public concern, or is it a private 
war? If the public is threatened, in life and liveli- 
hood, is the public entitled to protect itself, or is 
it called upon to commit uncomplaining suicide? 
Mr. Gompers did not answer the question that 
night. He issued a statement ten days later 

1 No. 80. 



1 82 M Hamilton Mere Here ®o=®ap 

which purported to be an answer: "Labor has no 
desire to cause inconvenience to the public, of 
which it is a part. But the public has no rights 
which are superior to the toilers' right to live and 
his right to defend himself against oppression/' 
Governor Allen answered his own question simply 
by citing the American Constitution, which 
1 ' makes the rights of the public paramount to every 
special interest." * 

Allen's must have been the correct answer, 
regardless of the controversial detail in which he 
may have worked it out in Kansas. Even on the 
basis of defending "toilers against oppression," is it 
not a fact that a great, national strike in an 
essential industry — like transportation, for ex- 
ample — threatens millions of other "toilers" in 
other industries which may have to suspend in the 
event of transportation paralysis? How about 
these "toilers' right to live?" They would out- 
number railroad strikers, ten to one. Their inter- 
est, in such a crisis, is absolutely hostile to the 
special interest of the "toilers" on strike. Their 
interest is joined with the interest of the general 
welfare. In other words, Mr. Gompers cannot 
draw the line of battle between "toilers" on one 

1 The Party of The Third Part, by Gov. Henry J. Allen, 
109. 



M Hamilton Mere %nxt ®o=23ap 183 

hand, and ''the public" on the other. The 
"public," in such a crisis, will number vastly more 
"toilers" than are enrolled beneath the banners of 
industrial insurrection. 

It is impossible, by any process of logic, to escape 
the conclusion that there are industrial occasions 
wherein the public welfare is paramount, and that 
Labor does not yield any of its legitimate American 
rights when it acknowledges the truth and accepts 
the limitations of citizenship in respect thereto. 
Nor is it possible to sustain the proposition that 
Labor submits to some form of involuntary servi- 
tude the moment it trades its strike right for the 
right to have its problems judicially reviewed. 
Organized Labor has answered this fallacy for 
itself by its repeated and voluntary negotiation of 
contracts for arbitration and mediation. The 
International Typographical Union and the Ameri- 
can Newspaper Publishers Association have dwelt 
together in harmony for years under exactly such 
contracts; and the report of the Committee on 
Officers Reports, in the annual convention of the 
International Photo-Engravers Union of North 
America 1 said — "As an organization we are com- 
mitted to the principle of conciliation and arbi- 
tration." Does this principle become one of 

1 Chicago, August 21, 1922. 



1 84 M Hamilton Mere Here ®o=3Bap 

"servitude" the moment it is proclaimed as the 
mandatory rule which must govern in situations 
where the public welfare is the paramount con- 
cern? It most certainly does not. A deeper 
principle, one of social morality, controls. Presi- 
dent Cleveland said he would deliver a postal card 
if he had to do it by using the entire army. Presi- 
dent Roosevelt said that he would do anything for 
Labor except what was wrong. Washington's 
Farewell Address declared: "Liberty is indeed 
little else than a name, where the Government is 
too feeble to withstand the enterprise of faction, to 
confine each member of the society within the 
limits prescribed by the Laws, and to maintain all 
in the secure and tranquil enjoyment of the rights 
of person and property/ ' 

In the early days of the Republic — the days 
when many of the wisest statesmen who ever 
functioned for a people, were concentrating their 
wisdom upon the problems of effectual Govern- 
ment among freemen — there was constant friction 
between groups of citizens inspired by conflicting 
purposes. "There are causes of hostility," ob- 
served The Federalist 1 "which take their origin 
entirely in private passions; in the attachments, 
enmities, interests, hopes, and fears of leading 

1 No. 6. 



M Hamilton iilere %)ztc Zo&ap 185 

individuals in the communities of which they are 
members. Men of this class, whether the favour- 
ites of a king or of a people, have in too many 
instances abused the confidence they possessed; 
and assuming the pretext of some public motive, 
have not scrupled to sacrifice the national tran- 
quillity to personal advantage or personal 
gratification." Is not this observation specifically 
applicable to-day? The "conflicting purposes" 
are different; but the sacrifice of "the national 
tranquillity" is the same. There have been Cap- 
tains of Industry and there have been Captains of 
Labor who, for the sake of a finish fight which has 
smelled more of venomous antipathies than of pro- 
found convictions, have carried on ruthlessly, to 
the injury of fair-play, to the ravishment of honor- 
able peace, and to the menace of society. If, in 
the kindred situation as it existed more than a 
century ago, the Founders recognized that this 
condition led straight toward crushing fatality, 
should we neglect the same acknowledgments 
to-day? "Complaints are everywhere heard," 
said The Federalist 1 u that our Governments are too 
unstable, that the public good is disregarded in the 
conflicts of rival parties, and that measures are too 
often decided, not according to the rules of justice 
1 No. 10. 



1 86 M Hamilton Wtvt ©ere ©o=JBap 

and the rights of the minor party, but by the 
superior force of an interested and over-bearing 
majority. " Is it any less true, to-day, with an eye 
to persistent and perennial industrial rebellion, 
that "the public good is disregarded in the con- 
flicts of rival parties?" If the Founders insisted 
that these unregulated rivalships — then usually 
between States — must stop, should we be less can- 
did in following their example? "Stability in 
Government," said The Federalist 1 "is essential to 
national character and to the advantages annexed 
to it, as well as to that repose and confidence in 
the minds of the people, which are among the chief 
blessings of civil society. An irregular and muta- 
ble legislation is not more an evil in itself than it is 
odious to the people; and it may be pronounced 
with assurance that the people of this country, 
enlightened as they are with regard to the nature, 
and interested, as the great body of them are, in 
the effects of good Government, will never be satis- 
fied till some remedy be applied to the vicissitudes 
and uncertainties which characterize the State 
Administrations." To-day's major " vicissitudes 
and uncertainties" flow from unregulated in- 
dustrial conflict in essential industries. The people 
again "will never be satisfied till some remedy 
1 No. 37. 



M Hamilton Were Ifatxz ®o=Bap 187 

be applied/' Is it not obvious that, without some 
remedy, our constantly intensifying industrial 
conditions will swing back and forth between tem- 
porarily dominant Capital and temporarily domi- 
nant Labor — both suffering as often as succeeding 
— neither ever being able to consolidate a perma- 
nent advantage? Is not this a species of shifting 
tyranny — no less obnoxious because shifting? 

Labor itself has vastly more to gain than it has 
to lose from the establishment of the remedy. 
Other things being even remotely equal, public 
opinion will always favor Labor. We have long 
since out-lived the black days when the exploi- 
tation or the repression of Labor was deemed an 
advantage to anybody. If there still be occasional 
Bourbons who cling to the ancient view that Labor 
is not something more than a mere mechanism, 
they are relics of a discredited age and they are 
rapidly losing any semblance of lingering authority. 
The prosperity and the happiness of Labor are as 
essential to a stable, vigorous America as are the 
Stars in its Flag. The self -defensive organization 
of Labor is a progressive movement that is here to 
stay. Indeed, when organized Labor, as a unit, 
accepts full responsibility for its acts under the 
Law, acknowledging obligations co-extensive with 
its rights and privileges; when it puts as great an 



1 88 3ff Hamilton Mere $$tvt {Eo=3!ap 

emphasis upon the quality of its work as it does 
upon the maximum compensation which it can 
then unanswerably demand ; when it demonstrates 
its own convincing faith in the impregnable 
righteousness of its cause, by daring any opponent 
to meet its case, on merit, before an industrial 
umpire in a court of industrial justice; when it 
takes this high, American ground, it will be as 
over-whelmingly popular as it will be absolutely 
invincible. Those who believe that Labor will be 
safe in a Court of industrial justice, display an 
infinitely greater faith in the inherent virtue and 
righteousness of Labor's cause, than do those who, 
by opposing all such referenda, confess a doubt that 
Labor's cause can withstand such scrutiny. The 
American theory of ordered justice has never yet 
been other than advantageous to Labor. 1 This 
newest evolution would be no exception to the 
rule. 

Workingmen's compensation Laws have suc- 
ceeded in taking most of the uncertainty and 
oppression and injustice out of vocational acci- 

1 "Employes should remember that the Republic was the 
first form of Government that gave Labor a chance. The 
worst year for Labor in the United States was better than 
the best year for Labor in any other country in the history 
of the world." — Back to The Republic, by Harry F. Atwood, 
82. 



Sf Hamilton Were Here ®o=J@ap 189 

dents. Standardized recourse to fixed tribunals 
has guaranteed Labor a "right of petition " in these 
respects, which has effectually saved Labor from 
the dubious necessity of fighting for a square-deal. 
Though these compensation Laws may need fur- 
ther liberalizing in spots, they are so universally 
acknowledged as a vast, progressive reform, that 
Labor would battle unyieldingly against their 
repeal. In other words, experience has demon- 
strated that Labor gained a greater, permanent 
advantage when it traded the "right to fight" for 
the "right to demand justice under the Law," than 
it ever enjoyed under the old era of free and un- 
limited controversy. If this result could flow from 
an ordered regulation of "workingmen's compen- 
sation" for accidents, why might it not be equally 
anticipated from an ordered regulation of "work- 
ingmen's compensation" for services rendered? 
Is there no analogy whatever between the two 
propositions? 

The Kansas Industrial Court Law is, of course, 
the pioneer in the United States. 1 It has been the 
subject of heated, partisan controversy all over the 
land. It has run a turbulent career in the State of 
its birth — where one outstanding Labor leader has 

1 Passed by a special session of the Kansas Legislature, 
January 24, 1920. 



190 M Hamilton JUere J&tvt ®o=3Sap 

gone to jail for his refusal to acknowledge the 
sovereignty of the whole people as expressed in legal 
statutes. It cannot be the purpose of this book to 
discuss the relative merit of arguments, pro and 
con, in relation to the Law's detail. Referring to 
the Kansas Law and the United States Labor 
Board — the one compulsory, the other voluntary — 
President Gompers has said: "Neither one of 
these outstanding examples of the industrial 
Court idea has succeeded in preventing strikes ; on 
the contrary, in both cases the utter futility of the 
whole idea has been completely demonstrated/' 1 
Governor Allen's testimony, on the other hand, 
takes the "f " off of " futility" and tosses it back 
into the dark ages. "The Court of Industrial 
Relations Law has been upon the statute books less 
than two years," declares Allen, "and thirty-four 
causes, involving the wages and working condi- 
tions of many thousands of laboring men, have 
been adjudicated. Of these thirty-four decisions, 
thirty-three of them have been accepted as just and 
satisfactory both by the employers and employees. 
A LARGE MAJORITY OF THE CASES WERE 
BROUGHT BY THE EMPLOYEES. The only 
appeal taken in a case which relates to wage awards 

1 Statement in Chicago Herald & Examiner, September 
3, 1922. 



M Hamilton Mtxt l&txz ®o=2Bap 191 

or working conditions ... is in the Supreme 
Court awaiting the report of a special commissioner 
appointed to make a survey of the cost of living. 
In the meantime the employer is setting aside the 
additional wages ordered by the Industrial Court 
and these will be distributed to the laboring men if 
the Supreme Court upholds the Industrial Court's 
decision." 1 Again: "Prior to the establishment 
of the Industrial Court, there had been an average 
of 13JH2 strikes a month in the Kansas coal fields, 
with an average of 141 working days a year for each 
miner; since the Court was established, the average 
number of days which each miner was employed 
has been increased to 256 a year." 2 Would it not 
seem, from this record, that the basic idea of an 
ordered industrial justice — whatever may be the 
detail of its evolution — holds promise for Labor 
as much as to any other parties to the average 
industrial equation? "I notice that Samuel Gom- 
pers continues to declare that the Kansas Court 
has failed," writes Allen 3 "because it has not put 
all the strikers in jail. If Mr. Gompers has read 

Statement entitled "Recent Activities of Court" 
supplemental to Open Letter, September II, 1922, from 
Allen to Congressman Homer Hoch. 

2 Gov. Allen's address to American Bankers Association 
Convention, New York City, October 5, 19/22. 

3 Letter to Congressman Hoch. 



192 M Hamilton Mere J^ere tEo=2@ap 

the Kansas Law he knows that this is a ludicrous 
argument. It is apparent to any intelligent man 
who reads it that it is not the purpose of the Law 
to send men to jail for refusing to work. The Law 
expressly provides that nothing in it shall be inter- 
preted to deprive a man of his natural right to 
choose his own employment and to cease it at will. 
The purpose of the Law is to prevent concerted 
action which might take the form of a conspiracy 
to restrict production or to close down an essential 
industry/' 

This principle is bound to prevail. The Kansas 
idea is "adjudication" rather than " arbitration." 
But the end — ordered and guaranteed justice to 
all concerned, including the public welfare — is the 
same in either event. All social progress is a 
matter of evolution. The original American Con- 
stitution was the product of slow, tortuous, com- 
promising evolution. It would be a miracle if the 
processes of ordered industrial justice could arrive 
with any less degree of travail. Foreign experi- 
ments with arbitration contribute their admoni- 
tions. In Australia, for example, the criticism 
most often heard regarding Australian industrial 
arbitration Laws, is that they operate too gener- 
ously for Labor — strange contemplation, in view of 
American Labor's hostile pre-conceptions on the 



M Hamilton Were 3£ere ®o=2Sap 193 

subject. One native journal 1 charges that some of 
the country's greatest industries are suspended 
because they cannot pay the wages awarded by the 
Arbitration Court. According to the Melbourne 
correspondent of a great London newspaper 2 
an effect of the system is to make unionism com- 
pulsory. Yet here in America the unions have 
fought every approach to the subject, claiming it 
to be a veiled assault upon unionism! Here we 
have, at very least, a demonstration of what 
fictitious barriers American prejudice has raised 
against a doctrine which, thus far, has had little or 
no opportunity to stand inspection upon its merits. 
It cannot be inherently poisonous to American 
Labor and be, at the same time, inherently gener- 
ous to Australian Labor, which occupies a sub- 
stantially high plane. The trouble in Australia 
easily may be that the effort at statutory arbitra- 
tion has been too complete and too rigid. It some- 
times actually penalizes Labor, according to this 
Melbourne correspondent, by prohibiting the 
voluntary acceptance of lower wages than the 
Court has decreed, when the maintenance of the 
appointed task obviously is impossible without 
lower, and mutually agreeable, costs. 

1 The Industrial Australian, as quoted by The New York 
Herald. 2 The Times. 

13 



194 3K Hamilton JUere $?ere ®o=®ap 

Canada's experience with less drastic arbitration 
laws, on the other hand, illumines a more inviting 
path. The Canadian Law bespeaks conciliation 
rather than conclusive judgments. It seeks no 
jurisdiction beyond industries essential to public 
service. It seems to have been aimed essentially 
at the injection of public influence into disputed 
equations. Seeking to estop resorts to force, it does 
not itself embrace the power it undertakes to dis- 
courage in others. It does not attempt to take 
from organized Labor its right to strike. It does 
not attempt to outlaw the lock-out. But it does 
procure a breathing space in which common 
counsels have a chance to prevail ; and it does say 
that before either side precipitates industrial 
warfare, a full investigation into the merits of the 
dispute must occur. Its conciliation boards, 
created by the Minister of Labor, sometimes 
merely postpone, instead of preventing, civil war; 
but the records indicate a healthy degree of com- 
plete success. In the year ending March 31 , 192 1 , 
there were 509 applications for conciliation boards; 
371 of these were granted, and there were only $2 
cases where strikes were not averted or ended. 
The small minority of failures is poor excuse indeed 
for ignoring the useful majority of successes. "On 
the whole," one critic has written, "the industrial 



M Hamilton ffllere Tfatxt ©o^Bap 195 

disputes investigation act has been an alleviating 
influence in Canadian industrial life, and has kept 
the Dominion freer from troubles of this kind than 
most countries." 1 No claims are made that the 
Canadian experiment ushers the millennium ; but no 
doubts are legitimate that it points a stage of useful 
development toward a dawning day of industrial 
reason. In a word, both of these foreign exhibits 
indicate that somewhere in the field of industrial 
arbitrament — a field thus far but casually explored 
by hardy pioneers — lies higher ground of common 
industrial advantage for all who seek just social 
relations. 

In the final analysis, the paramount importance 
of the public welfare is the thing which commands 
modern America to order "industrial disarma- 
ment" in situations involving life and livelihood for 
a majority of our whole people. In sustaining the 
power of Congress over common carriers, the 
Supreme Court declared in 191 7, in the Adamson 
Law case, that Congress has the Constitutional 
right to legislate to fix wages and hours of labor "in 
case of emergency and for the purpose of keep- 
ing interstate traffic open and continuous." 2 

1 W. J. Jeffers of Toronto, writing in Detroit Saturday 
Night. 

2 Wilson v. New, 243 U. S., 332. 



196 M Hamilton Mtxt Ifatxt ®o=Bap 

11 Emergency' ' may exist in times of peace just as 
desperately as in times of war. It is an " emer- 
gency/' of the type indicated, whenever strike or 
lock-out threatens serious interruption to the 
continuous operation of essential industries. 
America has been desperately near to fatal crisis 
more than once in just such artificial and arbitrary 
emergencies. As The Federalist 1 said of threats to 
the public welfare — "We owe it to mere casualty, 
that very serious embarrassments on this subject 
have been hitherto escaped." And as The Feder- 
alist, and the Constitution, and the whole heart- 
purpose of the Founders of this Government, 
combined together to urge emancipation for the 
common, public welfare from "the hazard of 
events" 2 so it may be set down as unmistakably 
sure that if the wisdom and the virtue of these other 
days could be brought into modern consultation, 
one of the first of these patriotic mandates would 
demand a fixed system of ordered industrial justice 
in essential American industries. 

It is not difficult to conjure the basic reasoning 
which Hamilton, if he were here, would apply to 
the situation. "Nothing is more certain than the 
indispensable necessity of Government, and it is 

1 No. 42. 

2 The Federalist, No. 40. 



M Hamilton Mere J^ere tCo=3Sap 197 

equally undeniable that whenever and however it 
is instituted, the people must cede to it some of 
their natural rights, in order to vest it with re- 
quisite powers." 1 Otherwise, the " result is to 
embarrass the administration, to destroy the 
energy of the Government, and to substitute the 
pleasure, caprice, or artifices of an insignificant, 
turbulent, or corrupt junto, to the regular deliber- 
ations and decisions of a respectable majority." 2 
Whether this "junto" is Capital or Labor — it can 
be and has been both — makes no odds when the 
public welfare is the stake. The greatest good for 
the greatest number is the only sound American 
rule. "The public business must, in some way or 
other, go forward. If a pertinacious minority 
can control the opinion of a majority respecting 
the best mode of conducting it, the majority, in 
order that something may be done, must conform 
to the views of the minority ; and thus the sense of 
the smaller number will over-rule that of the 
greater, and give a tone to the national proceedings. 
Hence, tedious delays; continual negotiation and 
intrigue; contemptible compromises of the public 
good." 3 This, accurately and specifically, is the 
situation to-day in relation to essential industries. 

1 The Federalist, No. 2. 

2 Ibid., No. 22. 3 Ibid., No. 22. 



198 M Hamilton Mere Here ®o=®ap 

"Government is instituted no less for protection 
of the property, than of the persons, of in- 
dividuals." 1 Both are at the mercy of industrial 
civil war. If ordered industrial justice, in essential 
industries, be substituted, " the interest of all would 
be the security of all." 2 Then we shall put behind 
us these "wretched nurseries of unceasing dis- 
cord." 3 When the issue becomes "unions v. the 
Union" or "capital v. the Capitol," there can be 
but one American choice; and there is but one 
American method for determining relative rights 
and wrongs. "The security to society must de- 
pend on the care which is taken to confide the trust 
to proper hands, to make it to their interest to 
execute it with fidelity, and to make it as difficult 
as possible for them to combine in any interest 
opposite to that of the public good." 4 

1 The Federalist, No. 54. 2 Ibid., No. 60. 

3 Ibid., No. 9. 4 Ibid., No. 66. 



"Gtfns dangerous; #tce" 

"Among the numerous advantages promised by a well- 
constructed Union, none deserves to be more accurately- 
developed than its tendency to break and control the 
violence of faction. The friend of popular Government 
never finds himself so much alarmed for their character 
and fate as when he contemplates their propensity to 
THIS DANGEROUS VICE. He will not fail, therefore, to 
set a due value on any plan which, without violating the 
principles to which he is attached, provides a proper cure for 
it. The instability, injustice and confusion introduced 
into the public councils, have, in truth, been the mortal 
diseases under which popular Governments have every- 
where perished; as they continue to be the favourite and 
fruitful topics from which the adversaries to liberty derive 
their most specious declamations." — 

" By a faction I understand a number of citizens, whether 
amounting to a majority or a minority of the whole, who 
are united and actuated by some common impulse of 
passion, or of interest, adverse to the rights of other citizens, 
or to the permanent and aggregate interests of the com- 
munity." — The Federalist, No. 10. 

The Constitution of the United States con- 
templates a social and political integration which 

shall no more be broken down by class prejudice 

199 



200 M Hamilton Mere J^ere QDo=Bap 

and by racial and religious passion, than by 
untoward fidelity to any other attachments which 
make for a sub-divided country that shall be at 
the mercy of clique or clan. The spirit of the 
Constitution is at war with the spirit of faction. 
"THIS DANGEROUS VICE" is the deadliest of 
all foes to the essence of freedom. Bigotry wears 
many masks, but none of them can wholly hide 
the menace that lurks behind. Indeed, the more 
righteous bigotry's pretense, the more dangerous 
its fangs. Pope said : "The worst of mad men is a 
saint run mad." The Bill of Rights is, in effect, 
the Constitution's Bill of Particulars against 
"THIS DANGEROUS VICE." Sometimes it is 
a species of fanaticism which pretends — aye, pro- 
foundly believes — that it monopolizes virtue, and 
is commissioned to the achievement of its aims, 
regardless of mere man-made Law. Sometimes, 
it is a species of fidelity to purposes that cannot be 
reached through Law, because contrary to the 
theory of Law. Sometimes, it is a species of 
infatuation which persuades itself that wrongs 
must be righted by new and extra-legal Crusades. 
Sometimes, it is that thing which we came to know, 
in war parlance, as "hyphenated patriotism." 
Sometimes, it is sedition and anarchy covered by a 
thin veneer. Sometimes it is sheer selfishness; 



M Hamilton Mere ?£ere tCo=2aap 201 

sometimes, zealotry; sometimes, ignorance. Per- 
haps it is unfair to group all degrees of faction 
together in a single indictment. Obviously, some 
are worse than others. There is a distinction, in 
the things we say, between admonition and 
condemnation. But warning must run against one 
and all alike. Americans are entitled to be 
intolerant only of un-Americanism. The only fac- 
tion, warranted by the spirit of the Constitution, 
is the faction which insists that the spirit of the 
Constitution shall remain sacred. The solidarity 
of the United States can be more definitely threat - 
tened by profane faction — dedicated to racial, 
religious or class vendetta — than by any external 
enemy in sight. If Hamilton were here today, he 
would find as many fires burning upon as many 
altars of faction as there were in the turbulent days 
when he was interpreting the New Freedom under 
the Constitution. By the same token, if Hamilton 
were here to-day, "THIS DANGEROUS VICE" 
would face his uncompromising challenge. 

If one word appears oftener than another in 
The Federalist, it is this word "f action.' ' No 
pains were spared to demonstrate how faction, 
frequently dedicated to comparatively inconse- 
quential ends in the beginning, has evolved the 
ruination of other lands and dynasties and Govern- 



202 M Hamilton Mere J^ere ®o=3Bap 

ments; how mere pin-pricks of factions have 
historically developed lethal fevers. 1 With solemn 
reiteration, the disruptive menace of internal 
faction was urged upon the new Nation, dedi- 
cated to unity and to equality before the Law. 
No greater need for the people was emphasised 
than "to guard them against those violent and 
oppressive factions which embitter the blessings of 
liberty." 2 The typical language of faction was 
outlawed by Washington in his Farewell Address: 
"You cannot shield yourselves too much against 
the jealousies and heart-burnings which spring 
from mis-representations — they tend to render 
alien to each other those who ought to be bound 
together by fraternal affection." Mis-represen- 
tation is the concomitant of faction. A land of 



1 The Federalist, No. 6, reminds us that Pericles, "in 
compliance with the resentment of a prostitute" — Aspasia 
— destroyed the city of the Samnians, and, later, "stimu- 
lated by private pique," was the primitive author of the 
famous and fatal Peloponnesian War ; that Cardinal Wolsey, 
"permitting his vanity to spire to the triple crown," precipi- 
tated. England into war with France; that the "bigotry of 
one female" — Madame de Maintenon, the "petulance of 
another" — Duchess of Marlborough, and the "cabals of a 
third" — Madame de Pompadour, influenced "the policy, 
ferments and pacifications of a considerable part of 
Europe." 

2 The Federalist, No. 45. 



3ft Hamilton Mere ?£ere Co=Bap 203 

far-flung hatreds is the inevitable climax when 
faction takes possession of the National soul. 
There may remain the shadow, but the substance 
of a United States, as conceived by the Fathers 
and dedicated to legitimate personal freedom, is 
gone if faction ever rides the saddle. 

Human nature is the same in every age. The 
genesis of faction may have been different a cen- 
tury ago : but the generations of to-day are no less 
exposed to contagions which, though perhaps new 
in guise, serve the same fatality. The warnings 
of The Federalist 1 read as though penned in 1923: 

"The latent causes of faction are sown in the 
nature of men; and we see them everywhere 
brought into different degrees of activity, according 
to the different circumstances of civil society. A 
zeal for different opinions concerning religion, con- 
cerning government, and many other points, as 
well of speculation as of practice ; an attachment of 
different leaders ambitiously contending for pre- 
eminence and power; or to persons of other descrip- 
tions whose fortunes have been interesting to the 
human passions, have, in turn, divided mankind 
into parties, inflamed them with mutual animosity, 
and rendered them much more disposed to vex and 
oppress each other than to co-operate for their 

1 No. 10. 



204 M Hamilton Wtvt l&txz ®o=3@ap 

common good. So strong is this propensity of 
mankind to fall into mutual animosities, that where 
no substantial occasion presents itself, the most 
frivolous and fanciful distinctions have been 
sufficient to kindle their unfriendly passions and 
excite their most violent conflicts." 

Faction, in the modern sense, applies to any 
coalition for the invasion or the embarrassment of 
the Constitutional rights of others, or for the 
subversion of the Constitution itself. Faction 
enters the industrial equation and arrays classes, 
against each other, which can enjoy no true prog- 
ress and prosperity except in mutuality of effort 
and through honest co-operation. Faction enters 
the cloisters of religion and puts sect against sect — 
frequently assuming to proscribe one faith or an- 
other as unpatriotic. Faction takes the law into 
its own hands and lynches negroes. Faction 
mobilizes men of foreign blood — citizens and aliens 
alike — and spurs them to a divided and inimical 
allegiance. Faction frequently becomes articulate 
through " seditions and insurrections which are, 
unhappily, as inseparable from the body politic 
as tumors and eruptions from the natural body." 1 
Faction always feeds on intemperate leadership 
and speech. President Harding recently declared: 

1 The Federalist, No. 28. 



3f Hamilton Mere l&txt ©o=5©ap 205 

"My one outstanding conviction, after sixteen 
months in the Presidency, is that the greatest 
traitor to his country is he who appeals to prejudice 
and inflames passion, when sober judgment and 
honest speech are so necessary to firmly established 
tranquillity and security." Hamilton would utter 
similar warning if he were here to-day. " Watch 
the man or the organization who appeals to 
your prejudices," recently declared The Western 
Advocate. 1 "They will bring a poison into your 
soul that will rob you of your friends and take 
away your peace of mind. They will in the end 
becloud the face of Jesus Christ and turn your 
path into spiritual darkness. No man can afford 
to sympathize with or encourage in the least any 
man or group of men who appeal to hatred and 
prejudice. . . . And now abideth hatred and pre- 
judice and violence, these three; but the greatest of 
these is prejudice." Hatred and prejudice and 
violence! The constant off-spring of faction! 
The undercurrents of destruction, gnawing at the 
spirit of the Constitution and the life of the 
Republic ! 

Let it be clearly understood that every organi- 
zation, serving a special purpose, is not factional, 
within the malignant meaning here described. 

1 Quoted in The Literary Digest of September 2, 1922. 



206 M Hamilton Mere Here ®o=®ap 

Indeed, some of the most constructively patriotic 
groups in the life of the Nation are dedicated to the 
"special purpose' ' of fighting baneful faction. 1 
Neither is fraternalism, as we know it in America, 
remotely related to the factionalism which must be 
banned. On the contrary, some of the rarest 
lessons in the American fidelities are taught by 
fraternal rituals. Fraternalism is one of the great 
American forces for social amalgamation; and, 
when it abjures the bigotry occasionally seeping 
in, it is titanic in its values. If the Fathers and the 
Founders could come back to life, most of them 
would be found in the fraternal lodges of the 
country. 2 Nor are political parties, factions, 
within this embargo. Dishonest demagogues may 
prostitute them to factitious ends, but inherently 

1 New York newspapers, for example, announced in 
October, 1922, the coalition of thirty patriotic societies, 
with a combined membership of more than 6,000,000 
throughout the country, proposing to incorporate as the 
Allied Patriotic Societies to oppose radicalism and 
revolutionary doctrines and unsound tendencies, and to 
develop a comprehensive system for the dissemination of 
knowledge of American principles and institutions. The 
Security League serves similar ends. There are many 
other similar splendid groups. 

2 For instance, out of fifty-six signers of the Declaration 
of Independence, fifty were Free Masons. All of the 
Governors of the original thirteen States were Masons. 
Washington was Grand Master of the fraternity. 



M Hamilton Mere l&txt ^o=30ap 207 

they further Constitutional necessities . l The Ameri- 
can Legion is still another type of organization 
which, if it be construed as faction at all, must be 
rated as the highest possible specimen of such pro- 
Constitutional and pro-American faction as the 
perpetuity of the Government must have if it 
shall survive. The preamble to its own Consti- 
tution is one of the finest apostrophes to 
constructive loyalty ever put into language. If 
Hamilton were here to-day, he would be a Legion- 
naire — just as, in his own time, he was not only one 
of the most intrepid soldiers who ever followed the 
Flag and stepped to the music of the Union, but 
also one of the most implacably determined friends 

1 Factionalism occasionally has been carried to a point 
where it has dominated political parties, inviting ballots 
based on bigotry or class appeal, but never with electoral 
success. The "American Party" was an oath-bound or- 
ganization sometimes called "The Sons of '76" or "The 
Order of The Star Spangled Banner" or, more commonly, 
"Know Nothings." It chiefly opposed aliens and Catho- 
lics. In 1856, it nominated Fillmore for President, along 
with the Whigs; carried one State, Maryland; and polled a 
total of 850,000 votes. The second party of this name was 
totally unlike the first. It was founded on opposition to 
secret societies, but never scored. An "Anti-Masonic 
Party," growing out of groundless hostility to Free Masonry 
cast 33,000 votes in New York State in 1828; 70,000 in 1829; 
and 128,000 in 1830. It had a candidate for President in 
1 83 1, but carried only the State of Vermont. 



208 M Hamilton Mere 3£ere ®o=23ap 

the soldier ever had, and one of the organizers of 
the famous Society of the Cincinnati. 1 In a word, 
this plague of faction is not inherent in all organi- 
zations serving a special purpose. The faction we 
discuss, the faction condemned by The Federalist, 
the faction which threatens American solidarity, is 
disclosed and branded by its own fruits — the bitter- 
est upon the Tree of Liberty. 

The real friends of ordered and unfractional 
freedom must be on guard, let it be remembered in 
this same connection, lest the best and cleanest of 
purposes be allowed to disintegrate into dangerous 
and factional trends. "It not infrequently hap- 
pens," declared one sturdy American pioneer, 
"that, transported by the indignation arising from 
an attempt to destroy free government, its friends, 
by the measures they take to defend and support 
it, sap those principles upon which it is founded." 2 
The unconstitutional invasion of the inalienable 

1 Speaking to a Michigan Legion Convention at Ann 
Arbor, September 6, 1922, President Burton of the Univer- 
sity of Michigan rightly said that the Legion faces three big 
tasks — doing its part in stamping out mob violence, pre- 
venting actions which might lead to revolution, and in 
eliminating much of the class feeling which is becoming so 
pronounced in the United States. In order words, he called 
the Legion to war on faction. 

2 Letter of James Hughes of Kentucky, February 8, 1807. 
Hughes was a prominent lawyer, a Jeffersonian leader, who 






M Hamilton Mere l^ere ®o=2Sap 209 

right of free speech is a phenomenon in point — 
although, as will be discussed in greater detail 
later, many a culprit mistakes license for liberty in 
these respects. Perhaps the best, concrete ex- 
ample is the mixed reputation of the modern Ku 
Klux Klan. The Constitution and Laws of this 
weird tong is a noble peon of patriotism, inculcating 
many of the noblest lessons to which Americans can 
attune their souls. 1 Many a Knight of the K. K. 
K. undoubtedly gives himself exclusively to these 
ideals. Yet, the trappings of imperial power 
which the ritual pretends, the sepulchral robes and 
cowls which the order wears upon its errands of 
intimidation or of vengeance, and the mysterious 
secrecy with which it clothes its membership and 
operations, all invite unhealthy consequences at 
the hands of zealots who may take advantage of 
anonymous identity to ravish the very ideals to 
which their oaths are fore-sworn. As a result, the 
Klan suffers a dubious reputation in many quar- 

vvas disturbed by the extreme measures taken by his own 
partisans in the Burr conspiracy and treason cases. 

1 The Objects and Purposes, described in the Constitution 
and Laws, adopted September 29, 191 6, are an address to 
"Chivalry, Humanity, Justice and Patriotism." "To 
protect and defend the Constitution and all Laws passed in 
conformity therewith," is a cardinal aim. "To shield the 
sanctity of the home and the chastity of womanhood," is a 
paramount doctrine, 
u 



210 M Hamilton Mere J&zvt ®o=20ap 

ters, though in others it is wholesomely respected. 
Indeed, The New York World was awarded the 
Pulitzer Prize for the best piece of constructive 
journalism in 192 1, because it disclosed the Klan in 
doubtful character. 1 Certainly there is no place 
in the America contemplated by the Constitution, 
for secret inquisitions which assume to censor the 
conduct or the consciences of citizens under the 
sovereign protectorate of the Bill of Rights. The 

1 The old K. K. K. was more definitely a problem. The 
K. K. K. Act of Congress, April 20, 1871, made it criminal 
for two or more persons to conspire or go in disguise upon 
the highway or upon another's premises for the purpose of 
depriving any persons of the equal protection of the Laws 
and privileges and immunities under the Laws. In U. S. v. 
Harris, 106 U. S., 629, this statute was declared invalid on 
the theory that the post-war Constitutional Amendments 
did not authorize Congress to legislate directly as to the acts 
of private persons. The Civil Rights Act of March 1, 1875, 
punished "conspiracy to injure, oppress, threaten or intimi- 
date any citizen in the free exercise or enjoyment of any 
right or privilege secured to him by the Constitution or the 
Laws of the United States." In Ex Parte Yarborough, 1 10 
U. S., 651, this was held as a valid exercise of power to pro- 
tect and enforce the right to vote. The New York Tribune, 
March 4, 1884, thereupon observed: "The Ku Klux Klan 
gets no encouragement from the Supreme Court. It was 
decided yesterday in the well-known Ku Klux cases that the 
Federal Government has power to prevent fraud and 
intimidation at elections. The most remarkable thing about 
these cases is that the question should ever have been 
raised." 



M Hamilton Mtvt %$txt {Eo=25a|> 211 

K. K. K. does not appear to be susceptible of any- 
precise calculation. 1 It must write its own de- 
cree, in the record of its actions. But its masks 
warn it, and the country, of its potential menace, 
because an abandonment of feelings of ordinary 
responsibility usually accompanies an abandon- 
ment of the means of personal identification: and, 
once unleashed under such anonymous auspices, 
"there is a contagion in example which few men 
have sufficient force of mind to resist." 2 Terror- 
ism of any type cuts the heart out of the Con- 
stitution. It is faction at its worst. The " Black 
Hand" over-reaches the particular individual 
whom it immediately victimizes, and clutches at 
the throat of Columbia herself. The camorra, no 
matter what outward livery it wears, is a conspiracy 
against Law and Order. 3 Can there be any ques- 

1 The Federalist's, No. 52, phrase, acknowledging judicial 
doubt. 2 The Federalist, No. 61. 

3 The Federal Council of Churches of Christ, representing 
20,000,000 Protestants, passed resolutions, October 16, 
1922, in part as follows: "Any organization whose activi- 
ties tend to set class against class or race against race is 
consistent neither with the ideals of the churches nor with 
true patriotism, however vigorous or sincere may be its 
professions of religion and Americanism. Evils of lawless- 
ness and immorality, however serious, can never be reme- 
died by secret, private and unauthorized action. They must 
be handled by the state and by recognized forces of 
education." 



212 3f Hamilton Were Here ®o=Bap 

tion what Hamilton would say if he were here 
to-day? The major motif of his life was his love of 
orderly, independent, sovereign American Govern- 
ment functioning exclusively through the institu- 
tions of Union. Every atom of his being revolted 
against the excesses of the French Revolution and 
his constant fear was that this spirit of abandoned 
respect for established institutions might communi- 
cate itself to the United States and threaten the 
Constitutional structure to the erection of which 
he had given his life. "I trust," he wrote upon 
occasion, "there is enough of virtue and good sense 
in the people of America to baffle every attempt 
against their prosperity, though masked under the 
specious garb of an extraordinary zeal for liberty. 
In a great Government, framed for durable liberty, 
not less regard must be paid to giving the magis- 
trate a proper degree of authority to make and 
execute the Laws with rigor than to guard against 
encroachments upon the rights of the community ; 
as too much power leads to despotism, too little 
leads to anarchy, and both eventually to the ruin 
of the people. When I perceive passion, tumult and 
violence usurping those seats where reason and cool 
deliberation ought to prevail, I acknowledge that I 
am glad to believe there is no real resemblance be- 
tween what was the cause of America and what is the 



M Hamilton iilerc tycvc {To=Dap 213 

cause of France; that the difference is no less great 
than that between liberty and licentiousness." 1 

Faction tries to sub-divide the prescription for 
American loyalty and read into it divers and 
sundry- incongruous elements. For those who 
share these prejudices and these misjudgments 
there may be recommended one tragically spec- 
tacular cure. Let a spiritual pilgrimage be taken 
to the sanctified shrine upon the heights of Arling- 
ton, across from Washington, where the Potomac 
River washes the foot-hills of Virginia. Here lies 
The Unknown Soldier. On November 10, 1921, 
his single casket — from out the sacrificial vastness 
of the World War's unanswered mysteries — lay 
atop the historic catafalque, beneath the dome of 
the Nation's Capitol, where Lincoln and Garfield 
and McKinley slept. The altar of martyrdom! 
Somebody's Boy who cared less for life than for his 
country! Somebody's Boy who traded even his 
.tity for immortality! All day long, from early 
morn till sunset gun, the hosts of the ten thousands 
filed past this a tlemn bier — strong men, proud to let 
s flow unchecked — decorated heroes, come to 
bid a Buddy a last good-bye— -black-veiled Mothers, 
lingering against the ropes, stretching on tip-toe, 
obviously trying to fling an eye beyond the im- 

1 The (iroiti rican, by Vandenberg, 133 1.^4. 



214 3K Hamilton Mere J&txt ®o=®ap 

penetrable veils of death, begging answer to the 
eternal question burning in a broken heart. On 
the Friday morrow — third anniversary of armistice 
— Somebody's Boy was escorted to his long, last 
home amid the greatest pageant of power and 
sorrow that ever swept the lengths of Pennsylvania 
Avenue, the thoroughfare of history. Such funeral 
rites, in the marbled Memorial Amphitheatre at 
Arlington, never before so stirred a Nation's soul 
and — please God — never will again. The dearest, 
rarest decorations within the gift of Governments, 
Europe's and our own, were pinned above the silent 
heart, by the mightiest generalissimos ot war. The 
President of the United States, choking with an 
emotion which gripped the whole, vast, mourning 
throng, was the only funeral orator whose exalted 
station befitted the occasion. God's hymns, 
mingling with the anthems of the Republic, swelled 
to high Heaven with an earnestness unknown since 
the days of 1776. It was consecration, dedication, 
deification. When, finally, the last wailing echoes 
of the bugles, sounding taps, had lost themselves in 
a requiem which burst the bounds of space and time 
and reached the utmost ends of earth, Somebody's 
Boy found Journey's End with a glory — and a 
message — as deathless as Truth and as invincible 
as Liberty. 



if Hamilton l&erc ©ere Co=Sap 215 

And now, ye men of faction, come stand before 
the Unknown Soldier's modest tomb! Who lies 
within? What manner of man \yas he? Whence 
did he come? Was he from north or south of an 
obliterated Mason and Dixon Line? Did he hail 
from the east, or was it out of the west, he 
marched? Was he rich or poor? Capitalist or 
Laborer? Was he from the city or the farm? 
Was he native born or naturalized? Was he black 
or white? Jew or Gentile? Protestant or Catholic? 

Nobody knows and nobody cares. Somebody's 
Boy might have been any one of these. All the 
petty, artificial distinctions that divide us, living, 
are lost in the challenge of this Unknown Soldier, 
wrapped in the folds of an eternal sacrifice. It 
suffices, for one and all, that he was true-blue in the 
zero hour of acid test. It is enough that he was 
faithful to his country and his Government, though 
faith called him to the Valley of the Shadow. 
What a lesson in the true measures of American- 
ism! What a damning repudiation of faction 
which dares to pretend to dictate a sub-divided 
formula! 

"A momentous and surprising feature of the 

World War," declared Senator Colt of Rhode 

nd, 1 "was the National unity of America. 

1 Speech in Senate, Au,;u t 2<;, 1922. 



216 3f Hamilton Mere Here ®o=Bap 

Made up of some forty different races, it was not 
believed that we were a Nation in any true sense. 
We were compared to Austria-Hungary and not to 
France. And yet, when war was declared, there 
was a National uprising unmatched, I believe, in 
the annals of mankind. As an illustration of 
National unity, more than 400,000 aliens enlisted 
under the Stars and Stripes. " 

This is true. It is also true that some of the 
deepest and most dependable fidelities which 
blessed the Government with their support, came 
from many naturalized citizens whose nativity was 
not only over-seas but oft-times within countries 
that became our martial foes. The Unknown 
Soldier might have been born in any one of a score 
of foreign lands. Also, it is true that we owe 
immigration for many of the sturdiest men and 
women who have helped our history and our cos- 
mopolitan citizenship. 1 To pretend that native- 

1 Eight of the men who sat in the Constitutional Con- 
vention and signed the finished document were of foreign 
birth, including Hamilton and Robert Morris, the financier 
of the Revolution, and James Wilson, one of the most 
influential of all the Charter-builders. In contemporary 
times, among many foreign-born Americans who made 
large contribution to social, economic and political history, 
may be mentioned Louis Agassiz, great naturalist, Franklin 
K. Lane, eminent statesman, Andrew Carnegie, philanthro- 
pist, George W. Goethals, builder of the Panama Canal, 



if Hamilton SBere ffizvt ®o=©ap 217 

born Americans possess a monopoly on the virtues 
of patriotism is nonsense. On the contrary, many 
a native son takes his heritage wholly for granted, 
as if it were an automatic, natural franchise which 
belongs to him by divine right and which demands 
of him no reciprocity of service: whereas, most 
naturalized citizens — with a back -ground of Old 
World experiences which permit them a more 
accurate assessment of American values — cherish 
their new possession with an affection which under- 
stands its worth. These things must be clearly 
borne in mind, lest injustice attend consideration 
of the fact that there is a reverse side to the shield 
which shows a close and a dangerous relationship 
between faction and immigration. 

The unassimilated alien — the un-Americanized 
citizen — is putty in the hands of the designing 
exploiteer. He falls wholly outside the class 
described in the preceding paragraph. In war, he 
lends aid and comfort to the enemy, with covert 
sympathies which leap the oceans and renew a 
back-stairs allegiance which brands him as an 
ingrate, a parasite and a traitor. In peace, either 

Alexander Graham Bell, of telephone fame, Samuel Gom- 
pers, Labor leader, James J. Hill, pioneer railroad builder, 
John Holland, inventor of the submarine, Henry Morgen- 
thau, diplomatist, Jaeob Riis, sociologist, etc. 



218 M Hamilton Were l&zxt ©o=3Bap 

his ignorance of the American institutions which 
have afforded him hospitality and sanctuary, or his 
dissatisfied failure to find or to make a place for 
himself in the New World, or his general ineligi- 
bility to our ways of ordered freedom, put him 
into the mob-ranks of distempered radicalism 
which snarls at Government and plots its undoing. 
Such aliens as these are a menace to the whole 
fraternity of naturalized Americans, as well as to 
the country. And America has herself alone to 
blame — not these poor, untutored dupes of circum- 
stance — if she permits immigration at a rate so 
great that these foreigners come to us faster than 
they can be assimilated, faster than they can be 
placed in gainful occupation, faster than they can 
be taught, constructively, to use and to appreciate 
the advantages of their re -birth. Unrestricted 
immigration is the spawn of faction. It is the 
endowment of anarchy. The United States has 
got to cease being a polyglot boarding house. 

It is past time to look this situation in the teeth, 
when the foreign-born white population of the 
country is 13,712,754 — more than the total popu- 
lation of the country in 1830; when there are as 
many known aliens, male and female, twenty-one 
years of age and over in the United States — 
5,559,185 — who have never applied even for their 



M Hamilton Mtvt l&txt ®o=5Bap 219 

first citizenship papers, as the total population of 
the Pacific States, California, Oregon and Washing- 
ton ; when there are as many alien males of voting 
age in New York State — 446,859 — as the entire 
population of Utah or Idaho or the District of 
Columbia; when there are as many alien males 
and females of voting age — 772,076 — in New York 
City, without a single tie or obligation to the 
Government, as the total population of Maine or 
the combined populations of New Mexico, Arizona 
and Nevada. These are startling figures. 1 It is 
more than a coincidence that the number of illiter- 
ate males, over twenty-one, in the United States is 
2,192,368 and the number of unnaturalized alien 
males of the same age is 2,138,237. The safety of 
our republican institutions is proportioned to the 
intelligence and the responsibility of those whom 
these institutions serve. The malignancy of fac- 
tion is nourished by illiteracy and irresponsibility. 
Straight as a pike-staff reads the warning that our 
vaunted melting pot is running over. We owe no 
greater obligation to the world than we owe to our 
own posterity. Indiscriminate immigration must 
be stopped. Run down the average cabal of 
communism, and you'll find, here in America that 

1 All figures based upon documents issued by the Depart- 
ment of Commerce in connection with the 1920 census. 



220 M Hamilton Mere 3£ere ®o=Bap 

it speaks a foreign tongue. Assess the antecedents 
of anarchy and its crimes, here in America, and 
you'll usually discover that foreigners predominate. 
Are we under greater compulsion to preserve the 
sanctuarial character of the United States as an 
asylum for all the "down trodden and oppressed" 
of earth, than to protect the Nation's republican 
character aga'nst the faction and the intrigues 
and the poison of itinerant guests who have no 
stake in the land they undertake to wreck? What 
else did The Federalist 1 have in mind, if read in 
modern application, when it prophetically said: 

' ' Nothing can be more chimerical than to imagine 
that in a trial of actual force, victory may be 
calculated by the rules which prevail in the census 
of the inhabitants, or which determine the result of 
an election. May it not happen, in fine, that the 
MINORITY of CITIZENS may become a MA- 
JORITY of PERSONS, by the accession of alien 
residents, of a casual concourse of adventurers, or 
of those whom the Constitution of the State has 
not admitted to the rights of suffrage? I take no 
notice of an unhappy species of population abound- 
ing in some States, who, during the calm of regular 
government, are sunk below the level of men: but 
who, in the tempestuous scenes of civil violence, 

1 No. 43. 



M Hamilton Wcvc tycvc Co=Bap 221 

may emerge into the human character, and give a 
superiority of strength to any party with which 
they may associate themselves/' 1 

Congress undertook to give post-war recognition 
to the need of bars at America's ports of 
immigration entry. It was — and is — a bungling, 
unscientific piece of work, though better than no 
restrictions at all. This new Law, in brief, pro- 
vides that new immigrants equal in number to 
three per cent of those foreign-born nationals of 
any country already here, may be admitted in any 
one year. In other words, it basically undertakes 
to reduce immigration to the terms of a problem in 
arithmetic, with all emphasis upon quantity, and 
practically none upon quality. As if eligibility to 
partnership in the exalted blessings of America 
can be measured with a yard stick! Up to three 
per cent, the bad may enter: beyond three per cent, 
the good must stay out! As sensible it would be 
to try to guage integrity with pint cups, or to test 

1 Thus when a train was wrecked near Gary, Indiana, 
during the 1922 railroad strike, an examination of the men 
held disclosed the following: A — born in Hungary, not a 
citizen; B — born in Lithuania, not a citizen; C — born in 
Lithuania, has only first citizenship papers, though he has 
. in America seventeen years; D — born in Italy, not a 
citizen, active member of the I. \V. \\\, a) 10 of Communist 



222 M Hamilton Mtvt l&txt ©o=Bap 

a soul with a tape line ! To limit the numbers of 
immigrants is important : but vastly more impor- 
tant is to limit deceased minds and bodies and 
twisted visions and treacherous hearts and un- 
healthy purposes — the deadly recruits of lethal 
faction. The need, in the spirit of the Constitution, 
is to test the moral, social, mental and physical 
cleanliness of the candidate for immigration, at the 
port of debarkation where he has already made for 
himself a certain character in his old environment ; 
then if he is sound — and there is economic room for 
him — to let him pass, otherwise to bar him, as we 
would bar any other plague; then to provide him 
with constructive hospitality when he arrives so 
that every facility may encourage his healthy 
Americanization; then, if he fails to qualify within 
reasonable length of time, if he fails to enter 
citizenship, to send him back to the land from 
whence he came. Under such a rule, the faction 
which feeds on exploited immigrants will die of 
famine. The country will be saved from "THIS 
DANGEROUS VICE," and immigrants will be 
saved from themselves. Is there any doubt that 
Hamilton, if he were here, would approve this rule? 
He himself was an immigrant — a friendless 
foreigner upon the docks of Boston at the age of 
fifteen. Two decades later he was the presiding 



M Hamilton ©Here l&txt ®o=3iap 223 

genius over the destinies of a new Nation. He 
could do no less than plead for a kindred chance for 
other earnest lads whose misfortune it may be to 
have first seen the light of day beneath some other 
flag. But, with his invincible devotion to the 
purity of American citizenship, and with his 
incorrigible opposition to infiltration by any 
weakening elements, he would demand a rigid rule 
of conduct under which the importation of taint 
or menace would be impossible. 

So far as religious freedom in the United States 
is concerned, it scarcely seems necessary to reiter- 
ate that the Constitution is an iron mandate, 
inflexible in its guaranty of liberty to conscience. 
Indeed, it is so thoroughly an American axiom that 
The Federalist 1 takes it for granted and uses it, in 
argument, as a fixed point of comparison when it 
says: "In a free Government, the security for 
civil rights must be the same as that for religious 
rights." Yet, when faction moves into occasional 
bigotry of virulent type in these modern times, it 
sometimes seems as though the situation had 
become reversed with the years, and that the 
modern need is to plead that "religious rights' ' 
shall be held no less secure than "civil rights." 
Some philosopher once said that, though systems of 

1 No. 51. 



224 3tf Hamilton Were Here ®o=Bap 

faith are different, God is one. He might have 
added that, however much these systems differ, 
the American is free to worship God in his own 
way, in his own time, at the altars of his own 
untrammeled choosing: and whenever the zealotry 
of faction — spurred by motives more sincere than 
sane — invites one American to hate another, to 
doubt another, to war upon another, because of a 
religious difference, it stimulates a withering 
plague at fatal odds with the spirit of the Constitu- 
tion and the structure of our free Government. 
Faction— "THIS DANGEROUS VICE"— takes 
no more bitter form than when it aggravates relig- 
ious animosities. Nor is it ever more unfair. 
What sect, what faith, has ever monopolized the 
pedestals of patriotism? What church can claim 
the Unknown Soldier? And yet what awful 
schism can be created in an otherwise united people 
by religious faction, with no credentials but its own 
bigotry and its own suspicions! The professional 
religion-baiter, in America, plots larceny against 
the birth-right of the Nation. Secretary of State 
Hughes, speaking in 1922 at the laying of the 
corner-stone for the National Baptist Memorial 
to Roger Williams, uttered words worthy of 
Hamilton if he were here to-day: 

" The right of religious liberty, which has become 



M Hamilton lilcrc S)ere {£o=5Dap 225 

a truism, carries with it an inhibition that no one 
should seek through politics to promote the 
activities of religious organizations, or should 
intrude differences of religious faith or practice 
into political controversies. We are so familiar 
with the conception of religious freedom that we 
are likely to forget at what cost liberty of con- 
science lias 1 >een won, and also the danger to which 
we are constantly exposed of a recrudescence to 
bigot ry. . . . Strong convictions, especially re- 
ligious convictions, are apt to develop tyrannical 
purpose, and no faith is so pure that it is never in 
danger of being made the instrument of the mis- 
taken zeal of those who would deny to others the 
right to think as they choos^ 

Th Federalist 1 indicated a belief that the ex- 
pansion of the Governmental and social unit, from 
the State to the Nation, would partially immunize 
the new country against religious faction. "The 
influence of factious leaders," it declared, "may 
kindle a flame within their particular States, but 
will be unable to spread a general conflagration 
through the other States. A religion ct may 
te into a political faction in a part of the 
Conk- y; but the variety of sects dispersed 

r the entitf of it must secure the national 

1 No. i" 
15 



226 M Hamilton Mere ftere ©o=®ap 

council against any danger from that source. " 
To substantial degree, history has justified this 
optimism. But, nevertheless, religious faction 
constantly shows a nasty mein — less often the 
responsibility of any sect than of those who mar- 
shal prejudices against some sect; and is of such 
moment as not only to irritate domestic homo- 
geneity, but also to debit our reputation abroad. 1 

Once and for all, so long as this land retains the 
character of its foundation, America must sustain 
the letter and the spirit of the Constitutional 
guarantee that H Congress shall make no Law 
respecting an establishment of religion, or prohibit- 
ing free exercise thereof," and the citizenship 
of America must weave this doctrine into the warp 
and woof of its life and contacts. 

Even more pronounced than religious faction, is 
racial faction. If there is, as has been said, a 
rising tide of color beating toward the white man's 
shores, we have a right — aye, an obligation — to 
defend our immigration gates against the influx 
of alien races which, in time, easily could over- 
whelm our white complexion. But this problem is 

1 Dr. Manoel de Olibeira Lima of Brazil, in his final 
lecture at the Williamstown Institute of Politics, August 22, 
1922, flatly warned that the prestige of the United States 
in South America has been injured by some of our religious 
propaganda. 



M Hamilton Mere T&txt QTo=2Sap 227 

wholly outside and beyond the more intimate 
proposition that we have no right — aye, a specific 
Constitutional obligation to the contrary — to tres : 
pass upon Law and Morals in our treatment of 
other races already here. This observation, in the 
nature of things, particularly applies to the negro. 
There is no danger of his color over-whelming ours. 
His mass development — despite glaring exceptions 
— has been little short of marvelous, considering 
his environment and opportunities, in the short 
half century since he was a slave. His mass 
loyalty to the Government is entirely beyond 
question. Remember: the heart, not the skin, is 
all that counts with us in the presence of the Un- 
known Dead ! In the face of such contemplations 
as these, there is no negro half so black as the 
blemish which Lynch-Law puts upon the white 
man's record; and there is no phase of faction more 
relentlessly un-American, in this modern day, than 
that which practises hempen vigilance. Granted, 
that there is sometimes almost irresistible aggra- 
vation to spur summary justice to its retributive 
mark. But, grant, also, that The Federalist 1 was 
right when it warned that "every breach of the 
fundamental Laws, though dictated by necessity, 
impairs that sacred reverence which ought to be 
1 No. 25. 



228 M Hamilton Mere 3^ere tEo-Bap 

maintained . . . towards the Constitution of a 
country, and forms a precedent for other breaches 
where the same plea of necessity does not exist 
at all, or is less urgent and palpable." 1 

Since 1885, including the first six months of 
1922, there have been 4,127 persons lynched in the 
United States. Of this number, 3,097 were negroes. 
Nearly every State is represented on the roll. The 
only States that have had no lynchings, since 
1882, are: Massachusetts, Rhode Island, New 
Hampshire and Vermont. Georgia and Missis- 
sippi head the list. It is the worst possible 
excresence of faction. The Republican National 
Platform for 1920 included the following plank: 
"We urge Congress to consider the most effective 
means to end lynching in this country which con- 
tinues to be a terrible blot on our American civili- 
zation." Just what Congress can Constitutionally 
do, remains to be seen, because the lynch-mob 
normally falls to the jurisdiction of the police power 
of the States. But there is no doubt that if 
Hamilton were here to-day, he would challenge this 
invasion of Constitutional guaranties with all the 

1 It is pertinent, with particular reference to the negro 
question, to observe that Hamilton was one of the pillars 
of the first American Abolition Society, formed in 1784 to 
accomplish gradual and legal emancipation; also that 
Hamilton always refused to own a slave. 



3f Hamilton Mere l&txz ®o=23ap 229 

vigor at his command; and that he would find 
the means to cope with it as a National problem, in 
the event that the States continue to refuse to set 
their own houses in order. What else could The 
Federalist 11 mean, in modern application, when it 
says: "A turbulent faction in a State may easily 
suppose itself able to contend with the friends to 
the Government in that State ; but it can hardly be 
so infatuated as to imagine itself a match for the 
combined efforts of the Union." And what else is 
a lynch-mob, uncontrolled by the State in which it 
operates, but a species of insurrection concerning 
which The Federalist 2 plainly said: " Should such 
emergencies at any time happen under the National 
Government, there could be no remedy but force." 
Any force which undertakes to operate outside 
the Law, is faction within the meaning of The 
Federalist's prescription. 3 Any force which under- 

1 No. 27. 

2 No. 28. 

3 Two news despatches of September 13, 1922, well 
illustrate the differentiation. At Fort Worth, Texas, it 
was reported that the "Ladies of The Invisible Eye" 
flogged a woman of forty-one. At Birmingham, Alabama, 
it was reported that business suspended for two hours while 
a new Law enforcement and observance league was formed 
to stop lawlessness in general, but floggings by midnight 
bands in particular. The former thing is faction ; the latter, 
legitimate and essential battle against faction. 



230 M Hamilton ffllere S^ere ©o=20ap 

takes to order the Law according to its own extra- 
legal interpretation and appetite, is faction. ' ' All ob- 
structions to the execution of the Laws," said Wash- 
ington's Farewell Address, "all combinations and 
associations, under whatever plausible character, 
with the real design to direct, control, counteract, 
or awe the regular deliberation and action of the 
constituted authorities, are ... of fatal tendency. 
. . . However combinations or associations of 
the above description may now and then answer 
popular ends, . . . they are likely to usurp for 
themselves the reins of Government, destroying 
afterwards the very engines which have lifted them 
to unjust dominion." Faction sometimes pleads 
a well-nigh unanswerable necessity for its extra- 
legal enterprises. But the grave trouble is that 
'whenever a wrong principle of conduct, political 
or personal, is adopted on the plea of necessity, it 
will be afterwards followed on a plea of conveni- 
ence." 1 Even Government itself, under stress of 
peril, frequently shows susceptibility to "THIS 
DANGEROUS VICE." Chief Justice Chase, in 
the Supreme Court, exemplified and explained how 
these situations develop. As a member of the 
Court in 1870 he denied the Constitutionality of a 

1 The language of Supreme Justice Field in Juilliard v. 
Greenman, no U. S., 421. 



M Hamilton Were Here QDo=Bap 231 

" Legal Tender Law" which he had previously 
supported while serving as Lincoln's Secretary of 
the Treasury. In his subsequent decision 1 he said: 
"It is not surprising that amid the tumult of the 
late Civil War, and under the influence of appre- 
hensions for the safety of the Republic, almost 
universal, different views, never before entertained 
by American statesmen or jurists, were adopted 
by many. The time was not favorable to con- 
siderate reflection upon the Constitutional limits 
of Legislative or Executive authority. If power 
was assumed from patriotic motives, the assump- 
tion found ready justification in patriotic hearts. 
Many who doubted, yielded their doubts; many 
who did not doubt, were silent. Not a few who 
then insisted upon its necessity, or acquiesced in 
that view, have, since the return of peace, recon- 
sidered their conclusions.' ' 

Many modern Americans know exactly what was 
in Chief Justice Chase's heart when he spoke these 
words; because our own recent war experiences 
gave similar excuse and stimulus to certain of these 
vigilante zeals. Impatient America, once roused 
to the martial hunt, encouraged and embraced 
discipline at the hands of unofficial proctors who 
could decree yellow paint for the luke-warm, and 

1 Hepburn v. Griswold, 8 Wall, 603 



232 M Hamilton Were Here $*=23ap 

tarred feathers for the tepid. When there were 
funds to be raised, the Government assigned 
"quotas" to the Federal Reserve Districts; the 
Districts re-assigned them to the States; the 
States, to their Counties; and then, not in- 
frequently, the Counties — applying these preced- 
ents literally — gave recalcitrant subscribers the 
choice of meeting an individual " quota" or riding 
a rail. Some of these episodes, no doubt, were in 
the mind of a great British satirist 1 when he wrote: 
"The more private records of the methods by 
which the American War Loans were raised, were 
so amazing that they put the guns and the possi- 
bilities of a raid clean out of our heads for the 
moment." It all seemed necessary at the time. 2 
God knows the motives were as lofty as the utmost 
peaks of human capacity. The zealotry of a 
crusade lay upon a patriot people's soul. In war 
the end usually seems to justify the means. We 
learned the old frontier habit of deciding for our- 

1 George Bernard Shaw in his Heartbreak House. 

2 These extrajudicial recourses were the exception and 
not the rule: it would be a libel on the superb spontaneity 
of American patriotism not to proclaim that most of these 
vast billions were volunteered. The total quotas in the 
five loans were as follows: first, $1,989,455,550; second, 
$3,807,865,000; third, $4,175,650,050; fourth, $6,964,581,- 
250; fifth, $4,497,818,750. 



3f Hamilton Uitvc ©ere Zo=J$av 233 

selves whether our neighbors squared with our 
ideas of what devotion and probity ought to be; 
and then we learned the habit of assessing their 
delinquencies by drum-head court martial. It was 
a reversion to type. We were our brothers' keep- 
ers. There was exaltation and exhilaration in the 
sense of super-patriotism: and there was essential 
utility to be served in net result. "Clear The 
Track" was a universal motto — with action suited 
to the word. But, in coldly analytical retrospect, 
it was all extra-judicial. It was outside the law — 
though that statement is something of a paradox, 
because there was no Law to fit. 

But now having put war aside, we must also put 
aside its licenses. We must abjure these censorial 
pedestals upon which we buoyantly climbed to rule 
by mandate of patriotism. The tolerated — aye, 
the justified — expedient of yesterday, is become 
an excresence to-day. Purity of motive ceases to 
vindicate the extra-legal dispensation of justice in 
a "government of laws." Just as a chain is no 
stronger than its weakest link, so the Nation is no 
stronger than the minimum fidelity of its people to 
the pr< 1 A law. The pioneer could excuse his 

summary recourse to hemp and lead as arbiters of 
crude justice-: there were few statutes, and fewer 
courts, to which he could appeal. But DO such 



234 3K Hamilton JUSere T&txt tEo=2Bap 

philosophy can properly obtain to-day. There is 
no devotion higher than fidelity to law : no crime 
greater in breaking the law than in borrowing its 
sovereignty for private verdicts or for private ven- 
geance. And this is the crime of faction. 

It is a species of faction when organized traffic in 
illicit alcohol sets out to evade the newly pro- 
claimed Eighteenth Amendment to the Consti- 
tution. The so-called boot-legger, and his cus- 
tomer, deal not only in bad liquor, but in equally 
bad patriotism. The Federalist bespoke no sterner 
rebuke to any faction than that which presumes 
to immunize itself against lawful regulations to 
which it dislikes to assent. If Hamilton or, in- 
deed, any of his compatriots, were here to-day, 
they would probably be startled at the progress of 
sumptuary Legislation to a Prohibitory point not 
dreamed of in the days of historic toddies. l But 
the character of the restraints, Constitutionally 
adopted, would appeal to them as of vastly less 

1 A recent book — What Prohibition Has Done to America, 
by Fabian Franklin — goes so far as to say: ''The Eight- 
eenth Amendment is not only a perversion but also a 
degradation of the Constitution. In the earlier days of our 
history — indeed up to a comparatively recent time — if any 
one had suggested such a thing as a Prohibition Amendment 
to the Federal Constitution, he would have been met not 
with indignation but with ridicule." 



M Hamilton WJere l&txt {Eo=29ap 235 

moment than the character of the enforcement of 
the restraints. Washington and Hamilton fought 
a " Whiskey Rebellion" in Western Pennsylvania, 
involving a question of Federal authority to levy 
an excise tax. They would as readily fight any 
"Whiskey Rebellion" to-day, involving a question 
of Federal authority to enforce the sovereign man- 
date of its own Constitution, and — let this be 
emphasised — to enforce it equally against rich and 
poor alike. The Law must know no favorites. 

A prominent journal devoted to the cause of 
absolute Prohibition 1 said: "Those who favor 
modification of the Volstead Law to legalize beer 
and light wines, for home consumption without 
the saloons, are 5% Americans; America has no 
place for 5% Americans except in jail." This is a 
false doctrine. We do not discuss the merits of 
Prohibition or of the Volstead Law, in this con- 
nection. We discuss the legitimate and proper 
means of American approach to a moot problem. 
The 100% American thing for those who oppose 
Prohibition in the abstract, or the Volstead Law in 
the concrete, is to seek, by lawful means to get 
the Laws changed. The u 5% Americans" are 
those who ignore and defy the Law as it exists, 
without change. Any other theory would be in 

1 The American Issue, March II, 1922. 



236 M Hamilton JHere J^ere ®o=3Bap 

conflict with every doctrine and purpose of the 
Constitution. The people always are privileged 
to change Laws which a majority dislikes. To 
deny them this prerogative would be to leave 
nullification as the only avenue of release, and the 
outlawry of faction as the only agency to be em- 
braced. It is this latter thing, above all else, 
against which vigilance must be perpetual. 

It is still another species of faction when Legis- 
lative bodies, oath-bound to serve the whole wel- 
fare of the whole people, split into ambitious groups 
or juntos or blocs, created to obtain special favor 
for a special interest. Time was when this thing 
familiarly known as "Big Business" was the 
dominating special interest in these respects. But 
"Big Business" is reasonably tamed to useful pur- 
poses, now; and, if it isn't, at least it has a multi- 
tude of competitors for special favor. There are 
Labor blocs and Liquor blocs and, most recently 
potential of all in the National Congress, a Farm 
bloc. The fact that a Farm bloc, for example, 
may serve temporarily just ends, cannot affect 
the basic principle that class divisions, in Legis- 
latures as among the people, are factional divisions, 
and that the theory of the Constitution is hostile 
to every notion of factional or class representation. 
Without intending invidious comparison, it might 



M Hamilton Were Here {Eo=23ap 237 

be said, parenthetically, that class representation 
is more nearly a Soviet ideal. The Federalist 1 
flatly declared that "the idea of an actual represen- 
tation of all classes of the people, by persons of each 
class, is altogether visionary .' ' It insisted that any 
such basis of representation was incompatible with 
the structure of the Republic. Has any one so 
crooked an imagination as to conceive that Hamil- 
ton, if he were here to-day, would belong to any 
one of these blocs? Indeed, so far as a Farm bloc 
is concerned, Hamilton put all of his persuasive 
powers at work to prove that there can be no 
permanently useful prosperity which is not planned 
reciprocally for the composite interests of the whole 
Nation, with the fully protected rights of Agri- 
culture and the equally protected rights of Industry- 
blended. If faction, however earnest and honest, 
disputed him to-day, he would probably re-quote 
The Federalist 2 : 

" The often-agitated question between agriculture 
and commerce has, from indubitable experience, 
received a decision which has silenced the rivalship 
that once subsisted between them, and has proved, 
to the satisfaction of their friends, that their 
interests are intimately interwoven. It has been 
found in various countries that, in proportion as 

1 No. 35. 2 No. 12. 



238 M Hamilton Here ?£ere ®o=Bap 

commerce has flourished, land has risen in value. 
And how could it have happened otherwise? 
Could that which procures a freer vent for the 
products of the earth, which furnishes new incite- 
ments to the cultivation of land, which is the most 
powerful instrument in increasing the quantity of 
money in a state — could that, in fine, which is the 
faithful hand-maid of labor and industry, in every 
shape, fail to augment that article, which is the 
prolific parent of far the greatest part of the 
objects upon which they are exerted? It is 
astonishing that so simple a truth should ever have 
had an adversary ; and it is one, among a multitude 
of proofs, how apt a spirit of ill-formed jealousy, or 
of too great abstraction and refinement is to lead 
men astray from the plainest truths of reason and 
conviction." 

It is a species of baneful faction whenever 
industrial Bourbons unite to exploit Labor or the 
great consuming public. We have already seen, 
in a preceding chapter, how faction easily involves 
itself in many different phases of the whole in- 
dustrial equation. Illegitimate commercial self- 
ishness and greed, whether chargeable to 
Managers or Men, is faction that sells its birth- 
right for a mess of pottage. To whatever degree 
those critics are correct who charge that modern 



M Hamilton Were T&txt ®o=2Sap 239 

America has sold itself to Mammon — with acquisi- 
tive eyes riveted upon the Mint, as the favorite 
emblem of Government and life and human aspi- 
ration — faction of the most sordid type takes 
possession of the American soul. 

But the worst of all faction, incidental to the 
business world, is that which chapters industrial 
disputes with violence and sabotage — square chal- 
lenge to the fundamental purpose of a Nation built 
on theories of Law and Order. Those who indulge 
in these piratical pursuits invariably are but a 
trivial minority, in numbers, of those who have a 
stake in the cause at issue. Indeed, the majority, 
in numbers, ordinarily condemns, at heart, all such 
mistaken methods for mis-serving a common cause. 
But since Lawlessness creates a paramount necessity 
to vindicate the Constitution — and forces all other 
issues aside until Lawlessness is cured — the crimes 
of the minority, in this respect, overwhelm the vir- 
tues of the majority and become the one magnified 
and monopolizing target against which the whole 
force of Constitutional citizenship must mobilize. 
Faction, in such circumstance, is the common 
enemy not only of the cause which it mistakenly 
pretends to serve, but also of the Constitution, the 
Government, and every right-minded person be- 
neath the Flag. "As to those partial commotions 



240 3f ?£amtltou Mere ?£ere ®o=2Sap 

and insurrections, which sometimes disquiet so- 
ciety, from the intrigues of an inconsiderable 
faction, or from sudden and occasional ill humors 
that do not affect the great body of the com- 
munity, the general Government could command 
more extensive resources for the suppression of 
disturbances of that kind than would be in the 
power of any single member," said The Federalist. 1 
In other w r ords, the responsibility of the whole 
Union of States is intended as a perpetual and 
unyielding barrier to faction which subverts the 
Law, because all such faction is closely kin to the 
climax in all faction — anarchy. 

One of the most staggering examples of the red 
extremes to which unbridled lawlessness can go, 
was given to the country at Herrin, Illinois, on the 
night of June 22, 1922. Here, in a welter of in- 
dustrial strife, tw r enty-two men — imported to re- 
open coal mines that were closed by strike — were 
slaughtered in cold blood. There is no more sor- 
didly inhuman tragedy in the annals of a brutalized 
Russia or a decimated Armenia. The most notori- 
ous of all "Hun atrocities" were no worse. Non- 
union miners were herded in shackled groups, 
driven into the open country, and shot as they 
stumbled away from their ruthless murderers. 

1 No. 16. 




Alexander Hamilton. 

From a Painting by Trumbull in the Chamber of Commerce, New York. 
(From Harper's Weekly, Copyright 1891 by Harper Brothers.) 

All things considered, this is one of the best of the Hamilton portraits, showing 
him in the prime of his magnificent and precocious young manhood. 



M Hamilton Were ?£ere ®o=®ap 241 

The most unspeakable cruelties were invoked. 1 
For months afterward scarcely a hand was lifted 
to search out the awful responsibility. The sullen 
community itself displayed little or no remorse. 
On the contrary, with dull effrontery, it seemed 
almost to glory in its dregs. The "majesty of the 
law' ' was a pathetic mockery. Nearly two months 
later, President Harding, in a message to Con- 
gress, called the thing a "butchery of human 
beings, wrought in madness," and pleaded for 
greater federal authority, with particular reference 
to the protection of aliens, to serve America's 
"outraged sense of justice' ' and her "humilia- 

1 A typical news despatch from Herrin at this time reads 
as follows : Herrin, June 22. — Out in a road near the mine, 
six men, tied together and all wounded by bullets and blows, 
lay in a scorching sun, while hundreds of men and women 
laughed at their pleas for water. One of the men, his face 
bloody and one shoulder shot away apparently was within 
a few minutes of death. ''Please, boys, give me a drink," 
he moaned. A laugh from the hundreds of spectators was 
the only reply. The correspondent rushed to a house for 
water and when he returned he was faced by a sword and 
quickly drawn pistols and told to keep away. When the 
man begged again for water, "for God's sake," a young 
woman with a babe in her arms placed her foot on the 
mangled body and said: "I'll see you in hell before you 
get any water." The men apparently had been dragged 
along a rocky road behind an automobile. Their clothes 
were torn and pieces of gravel were imbedded in their 
mangled flesh. 



242 3ff Hamilton JHere 3£ere ®Q=2Bap 

tion. Ml This is a specimen of the extremes to 
which lawlessness can graduate. Whether the bad 
judgment of mine operators, in challenging a 
striking community by attempting the importa- 
tion of strike breakers, shared moral responsi- 
bility, is beside this particular point. The basic 
proposition brooks no palliation: this thing is 
anarchy, and against it — no matter what its form 
or degree or excuse — every loyal -hearted American 
citizen must set his face and heart like steel. There 
can be no Americaxi compromise with lawlessness, 
any more than there can be compromise with a 
rattlesnake. Those who think to profit by it, are, 
ultimately the ones to suffer most. 2 

1 Message of A i B, 1922. 

1 Following the Ilerrin tragedy, Frank Farrington, Pres- 
dent of the United Mine Workers of Illinois, issued an 
appeal to all Illinois miners, on June 25, 1922, partially as 
follows: "This is an appeal to you and through you to our 
members that you and they cooperate to keep down dis- 
order and violence. Acts of disorder and violence only stir 
the public against us and make bitter enemies for us in 
places where we must have strong friends. Acts of destruc- 
tion may appease inflamed and angered minds, but cannot 
win any permanent success and if victory depends on vio- 
lence our cause is hopelessly lost. Already we are in dis- 
repute in the public mind and threatened with legislation 
that to say the least will cripple our union for years to come, 
if indeed, the w r eight of it does not sink the United Mine 
Workers of America. Therefore, I appeal to you to enlist 



M ^amtlton Were ?£ere ®o=2Sap 243 

When, finally, open anarchy shows its ugly face 
— what Carlyle called * ' the consecration of cupidity 
and braying of folly/' and " slop-shirts attainable 
three-halfpence cheaper by the ruin of living bodies 
and immortal souls' ' — the scurrility and male- 
diction of faction reach their peak. The Federalist 1 
felt sure that "The Citizens of America have too 
much discernment to be argued into anarchy"; 
and the record of the years verifies this confidence 
that no considerable sector of our people can be 
communized simultaneously. Nevertheless, there 
is a clear call to all lovers of their native land to 
relax no vigilance against this seeping sin. There 
are various degrees of anarchy, though all degrees 
are to be gauged solely by their threat to the 
established fundaments of Constitutional Govern- 
ment. There are various shades of sedition, 
though the entire spectrum shows a crimson caste 
which leaves little room for discriminating choice. 2 
With none of these degrading, abortive enterprises, 

the help of the sober-thinking members in your local union 
and have them join you in maintaining order and obedience 
to the laws of our union and the land." 

1 No. 26. 

2 For example, the commonly attributed slogan — "No 
God, No Flag, No Country" — leaves the Industrial Work- 
ers of the World small chance to plead American sympathy. 
The Short Constitution, by Wade and Russell, reports 
resolutions adopted in a New York mass meeting, December 



244 3f Hamilton Mere $$zvz ®o=Bap 

can Constitutional America compromise for one 
condoning hour. We are constantly told that re- 
strictions against this potential ruin, must not in- 
vade the rights of free assemblage and free speech; 
and, of course, it would be an anomaly to defend 
freedom by invading it. But is it not a more 
indefensible anomaly for faction, which pretends 
to aim at superior liberties, to meditate the de- 
struction of the root, tree and branches of all 
American liberty? "Liberty is to faction," said 
The Federalist, 1 "what air is to fire, an ailment 
without which it instantly expires. But it could 
not be less folly to abolish liberty, which is esential 
to political life, because it nourishes faction, than 
it would be to wish the annihilation of air, which is 
essential to animal life, because it imparts to fire 
its destructive agency." In other words, we must 
take care not to infringe the Constitutional rights 
of legitimate free speech, when we clamp embargo 
down upon the illegitimate — and sometimes our 
zeals carry us too far in these respects. But we 
are entitled, with all the vigorous Law that can 
be put at our command, to curb license when it 

2, 191 7, carrying this preamble: " We are the Bolshevists 
of America; we denounce Governments, institutions, and 
society ; we hail social revolution and the destruction of the 
existing order of things." 
1 No. 10. 






M Hamilton Were Ifatxt ®o=3aap 245 

threatens the annihilation of liberty itself. In 
fact, it is molly-coddle, maudlin nonsense for self- 
preserving Americanism to take any other view. 
Justice Story once defined free speech as follows: 
"Every man shall have the right to speak, write 
and print his opinions upon any subject whatso- 
ever, without any prior restraint, so always that he 
does not injure any other person in his rights, per- 
son, property, and reputation; and so always that 
he does not thereby disturb the public peace or 
attempt to subvert the Government." The rights 
of the syndicalist leave off where they invade the 
rights of the patriot. The Chicago Tribune has, 
editorially, correctly said: "Men whose principle 
of conduct is the imposition of their theories by 
force, should not be allowed to escape the Law 
because their action clothes itself in a political 
theory ; it was never intended that the guaranty of 
free discussion should thus destroy itself; it was 
established to protect freedom and not to abolish 
it." As Vice-President Coolidge well said at the 
Wellesley Industrial Conference: "One of the 
greatest tragedies of American institutions is the 
experience of those who come here expecting to be 
able to rule, without rendering obedience." While 
we owe it to candor to be liberal with those disciples 
of unrest who are merely exercising the Constitu- 



246 M Hamilton ©Here 3£ere ®o=3Sap 

tional right of free speech when they urge their 
reforms within the Law, we owe it equally to 
candor and to a just regard for our responsibility to 
posterity to be as cold and as hard as steel in our 
repression of any and all equivalents of anarchy; 
and we are criminally gullible if we permit com- 
munistic camouflage to disguise the real intent of 
any convulsive movement which seeks an anarchis- 
tic end. Theodore Roosevelt, speaking in the 
shadow of President McKinley's assassination, 
said 1 : "The anarchist and especially the an- 
archist in the United States, is merely one type 
of criminal, more dangerous than any other because 
he represents the same depravity in a greater 
degree. The man who advocates anarchy directly 
or indirectly, in any shape or fashion, or the man 
w T ho apologizes for anarchists and their deeds, 
makes himself morally accessory to murder before 
the fact. The anarchist is a criminal whose 
perverted instincts lead him to prefer confusion 
and chaos to the most beneficent forms of social 
order. His protest of concern for workingmen is 
outrageous in its impudent falsity ; for if the politi- 
cal institutions of this country do not afford 
opportunity to every honest and intelligent son of 
toil, then the door of hope is forever closed against 
1 Message to Congress, December 3, 1901. 



3f Hamilton Mere $$ztt ®o=JSap 247 

him. The anarchist is everywhere not merely the 
enemy of system and of progress, but the deadly 
foe of Liberty. If ever anarchy is triumphant, its 
triumph will last for but one red moment, to be 
succeeded for ages by the gloomy night of 
despotism. 

"For the anarchist himself, whether he preaches 
or practises his doctrines, we need not have one 
particle more concern than for any ordinary 
murderer. He is not the victim of social or politi- 
cal injustice. There are no wrongs to remedy in 
his case. The causes of his criminality are to be 
found in his own evil passions and in the evil con- 
duct of those who urge him on, not in any failure 
by others or by the State to do justice to him or his. 
He is a malefactor and nothing else. He is in no 
sense, in no shape or way, a 'product of social 
conditions,' save as a highwayman is 'produced' by 
the fact that an unarmed man happens to have a 
purse. It is a travesty upon the great and holy 
names of liberty and freedom to permit them to be 
invoked in such a cause. No man or body of men 
preaching anarchistic doctrines should be allowed 
at large any more than if preaching the murder of 
some specified private individual. Anarchistic 
speeches, writings and meetings, are essentially 
seditious and treasonable. Anarchy is a crime 



248 M Hamilton Mere Here ®o=Bap 

against the whole human race; and all mankind 
should band against the anarchist. His crime 
should be made an offense against the law of 
nations, like piracy and that form of man-stealing 
known as the slave-trade, for it is of far blacker 
infamy than either." 

The Federalist constantly urged its belief that 
one of the elements of strength inherent in the 
proposed new Constitutional order, was the greater 
facility with which society could combat any and 
all of these many and differing elements of faction. 
"The causes of faction cannot be removed," it 
said 1 ; " relief is only to be sought in che means of 
controlling its effects." One of the mastering 
reasons why the Fathers chose to erect a Republic 
rather than a pure democracy was frankly set 
down as a desire to fight faction and control its 
effects by "opposing greater obstacles to its concert 
and accomplishment." If Hamilton were here 
to-day, he would deny sympathy or remotest 
encouragement to any element of faction — 
"THIS DANGEROUS VICE." His matchless 
eloquence would plead with his countrymen to 
search their hearts against the possibility that some 
seed of faction might loiter there. His courageous 
example would stand forth to inspire them into 

1 No. 10. 



M Hamilton Mere ©ere ©o=®ap 249 

union against any agency of faction, and against 
"the dishonest artifices of sinister and unprin- 
cipled" 1 demagogues who start these fires in order 
to warm themselves, and to collect a tariff on 
prejudice and bigotry and passion and ignorance. 
"Hearken not to the unnatural voice which tells 
you that the people of America, knit together as 
they are by so many cords of affection, can no 
longer live together as members of the same family ; 
can no longer continue the mutual guardians of 
their mutual happiness; can no longer be fellow- 
citizens of one great, respectable and flourishing 
empire. . . . No, my country-men, shut your 
ears against this unhallowed language. Shut your 
hearts against the poison which it conveys." 2 
The most formidable of all domestic faction in 
America was buried in the ultimate peace which 
brought North and South into an indefeasible 
solidarity. There must be no disruptive 
renaissance builded upon other scores. 

1 The Federalist, No. 24. 

2 Ibid., No. 14. 



Cfre Jffleasure of Bemocracp 

"The demon of faction will, at certain seasons, extend his 
sceptre over all numerous bodies of men." — The Federalist, 
No. 65. 

1 ' Representatives must be raised to a certain number, in 
order to guard against the cabals of a few, and, however 
large it may be, they must be limited to a certain number, 
in order to guard against the confusion of a multitude." — 
The Federalist, No. 10. 

"The more numerous an assembly may be, of whatever 
characters composed, the greater is known to be the ascend- 
ancy of passion over reason. In the next place, the larger 
the number, the greater will be the proportion of members 
of limited information, and weak capacities. Now, it is 
precisely on characters of this description that the eloquence 
and address of the few are known to act with all their force. 
In the ancient Republics, where the whole body of the 
people assembled in person, a single orator, or an artful 
statesman, was generally seen to rule with as complete a 
sway as if a sceptre had been placed in his single hand. 
On the same principle, the more multitudious a represen- 
tative assembly may be rendered, the more it will partake 
of the infirmities incident to collective meetings of the 
people. Ignorance will be the dupe of cunning, and 
passion the slave of sophistry and declamation." — The 
Federalist, No. 58. 

One of the favorite fallacies of our time is the 

notion that the useful measure of democracy, in a 

250 



M Hamilton Mere ?^ere ®o=©ap 251 

representative Republic such as ours, lies in the 
"quantity" rather than the "quality" of power 
that is resident in mass citizenship. This theory 
subscribes to the conceit that there is always su- 
preme safety, and no element of danger, in numbers 
— the same idea, in effect, which reaches its climax 
in the commune. It is at direct variance with the 
representative principle upon which the American 
Government was founded; and it is denied not only 
by the admonitions of the ages, but also by Ameri- 
can experience down-to-date. For example, it 
measures the efficacy of a ballot by its length — by 
the number of elective positions that can be 
crowded upon the attention of the voters — without 
slightest heed to the probability that a shorter 
ballot, and a lesser number of elective positions 
would permit a greater concentration of resultful 
public attention upon fewer trustees who will, 
accordingly, carry a more definite responsibility, 
and who can, as a result, be held to stricter 
accountability. 1 It deems that State most secure 
in its popular advantages, where the broadest 
opportunities permit direct law-making by the 
people — without regard to the probability that a 

1 "The Constitution provided for a short ballot; the 
Republic itself is the short ballot plan." — Back to The 
Republic, by Harry F. Atwood, 89. 



252 if Hamilton JHere l&zxt Co=3@ap 

deliberative Legislature might enjoy opportunities, 
to perfect the essential details of legislation, totally 
lacking where an inflexible proposition goes to the 
whole electorate on initiative or referendum, yet 
constantly necessary to the completion of finished 
and adequate statutes. It is a school of political 
thought which tests every principle of Government 
by the extent, rather than by the efficiency, of 
popular control; and, while there must always be 
an important element of value in any factor which 
aims to safe-guard the responsibility of Govern- 
ment to those governed, this fundamental doctrine 
is at war with the plan of the Republic, and, more 
often than not, it is at war with the very interests it 
presumes to promote. 

The true measure of democracy, in a represen- 
tative Republic like ours, is not the sheer 
"quantity" of direct power that can be placed 
with mass-citizenship: it is the " quality* ' of 
popular authority — the efficiency of the control — 
which fixes the utility of the forms of Government. 
Forms are justified only by their results. If too 
many cooks spoil the broth, it is no advantage to 
the broth to multiply the cooks, no matter how 
much those who believe in the exclusive efficacy 
of numbers may theorize to the contrary. We 
do not need more Law-makers; we need better 



M Hamilton Mere T&tit ®o=©ap 253 

ones: and this emphasis upon the "quality" of 
results, rather than upon the "quantity M of agents, 
is the very genius of enlightened and progressive 
Government. Up to a certain point, numbers are 
necessary to safety "in order to guard against the 
cabals of a few" : beyond this point, mere numbers 
are a menace, because of "the confusion of a multi- 
tude," and — even more pertinent — because un- 
wieldy masses lend themselves to easy exploitation. 

The fallacy of trying to measure the efficiency of 
democracy by mere bulk is no more strikingly 
illustrated than in a candid study of the size of 
the House of Representatives, where the constant 
increase in membership has now reached such a 
chaotic point that practical legislative necessity 
has delivered the House into the hands of an abso- 
lute political oligarchy, with the inevitable result 
that the average member possesses neither in- 
dividuality nor representative power. His con- 
stituents, by the same token, share the same fate. 
So does this thing we call "democracy." 

It is obviously impossible, in a work of this 
limited scope, to analyse the whole field of error 
contingent upon the notion that all safety is in 
numbers. But the case of the House is so strik- 
ingly illuminating — and so typical of a false doc- 
trine's fruits — that it may be dissected as a moni- 



254 3tf Hamilton Were Here ®o=®ap 

tory cross-section of the whole problem, and as 
conclusive proof that the advice of the Founders of 
the Government is as sound and as constant in its 
values to-day as it was in the formulative era 
when the true and correct philosophy of a repre- 
sentative Republic was first given to the world. 

As a basis for these contemplations, let the 
following doctrine from The Federalist l be borne 
constantly in mind : 

"In all legislative assemblies, the greater the 
number composing them, the fewer will be the men 
who will in fact direct their proceedings. . . . 
The people can never err more than in supposing 
that by multiplying their representatives beyond 
a certain limit, they strengthen the barrier against 
the government of a few. Experience will forever 
admonish them that, on the contrary, AFTER 
SECURING A SUFFICIENT NUMBER FOR 
THE PURPOSES OF SAFETY, OF LOCAL 
INFORMATION, AND OF DIFFUSIVE SYM- 
PATHY WITH THE WHOLE SOCIETY, THEY 
WILL COUNTERACT THEIR OWN VIEWS 
BY EVERY ADDITION TO THEIR REPRE- 
SENTATIVES. The countenance of the govern- 
ment may become more democratic, but the soul 
that animates it will be more oligarchic. The 

1 No. 58. 



M Hamilton Mere l&zvz ®o=3iap 255 

machine will be enlarged, but the fewer, and often 
the more secret, will be the springs by which its 
motions are directed.' ' 

These pronouncements are as true in 1923 as 
they were in 1787. It is a popular thing — it is 
supposed to be a "progressive" thing — to shout 
for a greater " quantity " of democracy in America. 
But as the "quantity" increases, the "quality" 
decreases, and, therefore, the real advantage of 
democracy is hurt, not helped. Let us see what 
the record shows, in relation to the size of the 
House. 

The determination of the proper size of the 
National House of Representatives has always been 
a bone of desperate political contention and gerry- 
mander. Every time the decennial census has 
produced the arithmetic upon which Constitutional 
re-apportionment must be based, Congress has 
solemnly debated the problem in the light of the 
public welfare, and then just as solemnly settled 
it with an eye to the least possible disturbance of 
the political fortunes of the sitting gentlemen. 
Never but once has a re-apportionment Law re- 
duced the size of the whole House 1 and this was 
upon the initiative of a Senate amendment. Or- 
dinary practice has left the House to order its own 

1 Act of June 25, 1842. 



256 M Hamilton Mtvt J^ere ©o=Bap 

destiny, and destiny, as a result, usually has first 
seen to it, in recent years, that the House should 
be of such a size as not to rob any sitting member 
of his seat, regardless of the extent to which the 
total membership has had to be increased to 
achieve this purely personal advantage. 1 As a 
result of this tendency the size of the House has 
been steadily increasing. 

The Constitution launched the House with a 
total membership of 65- a ratio of one Congress- 
man to every 30,000 population. 2 The federal 

1 In connection with the re-apportionment resultant from 
the [920 census, the first report from the Census Committee, 
66th Con. : . 3rd Ses ion, January 8, 1 021, recommended 
a new population ratio of 21 s o s <> 6 it each representative so 
that "under this ap portionment, no State will lose a mem- 
ber." The same Committee, 67th Congress, 1st Session, 
July 29, 1921, reported a ratio of 228,882, under which the 
only 1< in membership would have been one Represen- 
tative each from Maine and Missouri. 

2 Upon this so >re it is interesting to note what The Federal- 
ist, No. 55, had to say : "The number of which this branch 
of the Legislature is to consist, at the out-set of the Govern- 
ment, will be sixty-five. Within three years a census is to 
be taken, when the number will be augmented to one for 
every 30,000 inhabitants; and within every successive 
period of ten years the census is to be renewed, and aug- 
mentations may continue to be made under the above 
limitation. It will not be thought an extravagant con- 
jecture that the first census will, at the rate of one for every 
30,000, raise the number of Representatives to at least 100. 



M Hamilton Mere ?#ere ®o=23ap 257 

census has been taken fourteen times since then, 
and, with the single exception noted above, each 
census has been followed by an increased House 
membership. 1 The ratio of population to be 
represented by one Congressman has increased in 
each one of these stages, as follows: 1790, 30,000; 
1800, 33,000; 1810, 35,000; 1820, 40,000; 1830, 
47,700; 1840, 70,680; 1850, 93>4 2 3; i860, 127,381; 
1870, i3i,4 2 5; 1880, 151,911; 1890, 173,901; 1900, 
194,182; 1910, 211,877. But while the ratio has 
thus increased from decade to decade, consonant 
with the growth of the country, so also has the 
total membership of the House increased, because 
the former ratio has not kept pace with the latter 
growth. The result has been a total membership 
of the House, in each of these decades as follows: 
1790, 105; 1800, 141; 1810, 181; 1820, 213; 1830, 
240; 1840, 223; 1850, 234; i860, 243; 1870, 293; 
1880, 325; 1890, 356; 1900, 386; 1910, 435. 

... At the expiration of twenty-five years, according to 
the computed scale of increase, the number of repre- 
sentatives will amount to 200; and of fifty years, to 400. 
This is a number which, I presume, will put an end to all 
fears arising from the smallness of the body." The first 
and the third censuses practically justified these prophecies, 
although it took 120 years to reach the final figure indicated. 
1 The re-apportionment pursuant to the 1920 census has 
not been agreed upon, as this is written. 
17 



258 M Hamilton WLzvt l&txt ®o=3iap 

The result is that the size of the House today is 
a menace to its own efficiency and to its own 
democracy; and unless courageous, political un- 
selfishness soon puts metes and bounds to this 
elephantiasis, what is now a deadly disease will 
graduate into fatal malady. The House already 
is so big, and so burdened with the infirmities of 
its own size, that it is a " deliberative " body in 
name only. The orator who still glorifies it, in the 
intoxication of spread-eagle apostrophe, as "the 
greatest popular assembly, etc., etc.," is talking 
just plain unadulterated buncombe. The truth 
is that the House, by decennially multiplying its 
own encumbrance, has had to yield all pretense of 
independent, deliberative, representative consider- 
ation of public problems. Long since, they had to 
take the individual desks out of the hall of the 
House, and squeeze the members onto benches. 
While it was a purely physical expedient which 
recommended this change, it was a prophetic sort 
of thing after all — for why should the average, 
modern, House member have such a thing as a desk 
on the floor of the House, a desk or any other 
appurtenance conveying the suggestion of a real 
participation in the movements of a parliament 
which is as completely in the hands of a few bosses, 
backed by a few puissant rules, as if its membership 



M Hamilton USere Here ®o=23ap 259 

were 35 instead of 435, and the ratio of represen- 
tation 3,000,000 instead of 211,000? Nor is there 
legitimate reason for one who consents to the size 
of the House, to complain against " bosses" and 
" rules," because, without them, the despatch of 
public business would be all but impossible. Im- 
agine freedom of debate among 435 statesmen, 
dealing with hundreds and thousands of Bills! 
It would consume nine eight-hour days to permit 
each member to make a ten-minute speech on one 
subject! And statesmen are not given to ten- 
minute speeches. It takes so long to even call the 
roll of the House, that mechanical registering 
devices are being sought to expedite the process of 
compiling a simple "yes" or "no" from each 
member of the throng. In other words, here is a 
shining example of "quantitative " democracy; and 
here is the exact evolution against which The 
Federalist warned. 

Each time the basis of apportionment has to be 
changed, we hear the same old, thinly veneered 
arguments — how it is wise "for the sake of democ- 
racy" to keep this great, representative body 
"close to the people" — how this is the only means 
left, as the country continues to grow, for guaran- 
teeing the legislative dominion of the people. 
But each time the size of the House is increased in 



260 M Hamilton Mere Here ®o=Bap 

response to these considerations, the considerations 
themselves become the more desperate and the 
more endangered. Hon. Theodore E. Burton of 
Ohio, after a membership in the House under four 
apportionments, declared that the one out-stand- 
ing thing which has impressed him, with each 
increase in the total membership, has been "the 
diminished prestige of the House and the 
diminished standing of the individual member." 1 
That this candid verdict is the truth, is the only- 
conclusion honesty can attest. The ratio of 
diminishing prestige and utility will continue to 
slide toward zero in proportion as the House 
continues to vote itself into the inevitable 
impotence of unhealthy and unmanageable expan- 
sion. And where will it all end — this fallacy that 
" numbers" alone can spell the salvation of 
democracy? Unless some Congress comes along, 
with an adequate understanding of the correct, 
historical basis of representation in a Republic, 
and with the courage to vote a few of its own 
members out of their Congressional jobs, it is only a 
question of time before the House roll-call will 
approach a thousand names, and the normal 
Congressman will be little more than a sublimated 
Washington messenger boy for his constituents. 
1 House Hearings, June 27, 192 1, House Document, p. 19. 



3ff Hamilton Mere 1&txt tCo=23ap 261 

Somewhere, somehow, sometime, some decennial 
Congress must make the break that shall save the 
House from fatty degeneration of the heart. It 
makes no difference, though it is a favorite argu- 
ment, that the popular branch of many foreign 
parliaments is more numerous than our own. 1 
These foreign parliaments function differently 
from our own. Ordinarily the prevailing 
Ministries are chosen from among them, and the 
Ministry is the essential expression of the parlia- 
ment. Our Cabinet, our Administrators, have no 
relationship to Congress — and should have none, 
unless and until we are prepared to abandon our 
Constitutional checks and balances. Our problem 
stands on its own legs and must be judged by 
exclusively American standards. "The member- 
ship of the House cannot be increased indefinitely. 
A stop must be made sometime," read the minority 
report of the Census Committee in the 67th Con- 
gress, "and in our opinion no time will ever be 
more opportune than the present, for we believe a 
point has been reached where increased member- 
ship will result in decreased efficiency." 

1 The United Kingdom, under the 191 1 census, had 707 
members in the House of Commons. Under the 191 9 cen- 
sus, France had 626 members in the House of Deputies. 
Italy has 508, Spain, 417, Germany 423 members in the 
lower House. 



262 3ff Hamilton Mtxt Jf$tvz ®o=JBap 

Certainly it is provably true that increasing 
the size of the House from time to time, has done 
exactly what The Federalist prophesied — the 
countenance of the Government may be more 
democratic, but its soul is more oligarchic — and 
certainly the enlargement of the machine has 
resulted in "fewer and more secret springs by 
which its motions are directed." 

The House to-day pretends to be composed of 
435 members. But to all practical intents and 
purposes, it could more truthfully be said to be 
composed of the five gentlemen who comprise the 
majority of the Republican majority of the Com- 
mitter on Ruks. The House itself, of course, is so 
large that (very motion made by its complex 
machinery must be in perfect harmony with some 
constricting rule. If there is no regular standing 
rule to fit the occasion, a special rule is created for 
the emergency. But always there is a rule — and 
the source of these rules is pretty nearly the 
fountain-head of real Congressional control. The 
Rules Committee is composed of twelve mem- 
bers — eight belonging to the majority party, 
four to the minority. It is the most powerful 
Committee in the Capitol, and it holds the power 
of a Czar in respect to legislation. This Com- 
mittee could, if it wished, practically prevent 



M Hamilton Mere $?ere tE:o=®ap 263 

important legislation by refusing to report out a 
special rule giving such legislation right of way. It 
can, to all intents and purposes, protect measures 
against amendment. It can, so long as party 
discipline holds its party colleagues in line, practi- 
cally designate the fate of any measure. Take 
tariff legislation as an example — the initiation of 
all revenue Laws being the most important as it is 
the exclusive Constitutional prerogative of the 
House. Specifically, take the Fordney Tariff 
Bill of 1922 as an example. It was framed by the 
seventeen Republican members of the Ways and 
Means Committee, in executive session. As the 
rules of the party caucus apply very strictly to all 
of the members of the Ways and Means Committee 
it can be safely stated that nine Republicans 
controlled the actions of the Committee. Thus 
was the Bill framed and reported to the House. 
With it came a special rule from the Rules Com- 
mittee under which amendments to the Bill that 
should be offered from the Ways and Means 
Committee took precedence over all other amend- 
ments; and, of course, there also was the familiar 
provision to limit the time of debate. It was not 
possible, when the Bill got into the House to read 
the entire Bill for Amendment under the standing 
five-minute rule, and as the Committee had not 



264 3tf Hamilton JHere l&ttt ®o=3Bap 

exhausted its own amendments before the total 
time provided had expired, all members of the 
House, other than Committeemen, were fore- 
closed from any opportunity to actually participate 
in the making of the Bill. They could vote upon 
such propositions as the rules permitted to be 
presented; but even this balloting privilege was 
strictly confined to such questions as the Managers, 
under the rules, deigned to submit to the House. 
As for discussion, there was a form of limited and 
wholly futile debate: but even this shadow of a 
privilege amounted, for most of the members, to 
nothing more than a "leave to print" undelivered 
speeches in the Congressional Record. In a word, 
the Fordney Tariff Bill was the work of nine men 
who composed a majority of the Republican major- 
ity of the Ways and Means Committee and five 
men who composed a majority of the Republican 
majority of the Rules Committee. It reflected the 
judgment and purpose of fourteen — not 435 — mem- 
bers of Congress. Nor was it any different in this re- 
spect than is any other piece of important legislation. 
While the rules of the House theoretically provide 
an opportunity for elastic legislation, the physical 
necessity for close management in order to get busi- 
ness done in so numerous a body, reduces the 
practical aspects of this opportunity near to 



M Hamilton Mtvt tyzxt ®o=®aj> 265 

nothing. Was The Federalist, as already quoted, 
right or wrong, when it said: "In all legislative 
assemblies, the greater the number composing them 
the fewer will be the men who will in fact direct 
their proceedings"? Nor is it amiss to add this 
further observation from this same prescient 
source 1 : "A few of the members, as happens in 
all such assemblies, will possess superior talents; 
will, by frequent re-elections, become members of 
long standing ; will be thoroughly masters of the 
public business, and perhaps not unwilling to avail 
themselves of those advantages. The greater the 
proportion of new members, and the less the 
information of the bulk of the members, the more 
apt will they be to fall into the snares that may be 
laid for them." 2 

There is still an epilogue to this drama — this 

1 The Federalist, No. 53. 

2 The Searchlight, Vol. VIL, No. 3, issue of August 31, 
1922, said regarding the initial passage of the Fordney Bill 
through the House: "Congressmen could talk, and did 
for several days. There was some freedom of debate, but 
that did not extend to individual opportunities to alter and 
amend. July 21, 1921, was the time fixed for the final 
passage of the Bill. Therefore, on that date, after less than 
two weeks of gag ruled consideraton, the House passed the 
measure. . . The House has completely broken down 
as a deliberatve body. Average members, so far as real 
influence is concerned, are mere dummies. A few bosses 
possess and exercise all the power that counts." 



266 M Hamilton MJere ©eve Co=2Bap 

farce of democracy attained through reliance upon 
numbers. The Senate debated for four months 
what the House had tossed off in two weeks. It 
put 2,500 amendments on the Fordney Bill. 
When the Bill came back to the House it was 
promptly sent to "Conference" — meaning that it 
was given to a joint Committee consisting of three 
Republican and two Democratic Congressmen, and 
three Republican and two Democratic Senators. 
It was their function to "reconcile" the "differ- 
ences between the House and Senate " The six 
Republican " reconcile locked their door upon 

the four Democratic "reconcilers" and upon the 
public. Do you remember The Federalist warned 
that the "springs' 1 controlling too large a legis- 
lative machine would become not only few but 
11 often secret"? Here enter both elements. Six 
men — these joint conferees — finally wrote the real 
Fordney-McCumber Tariff Law and wrote it 
behind bolted doors. The results of their com- 
promises came back to the House under another 
special rule which again precluded effectual 
inspection or dissective vote. What fourteen men 
began, three completed — so far as the House of 
Representatives was concerned. And this is the 
regular, typical routine. 

Legislation which is perfected by the few, and 



M Hamilton Mere ?|ete ®o=l3ap 267 

rubber-stamped by the many, is not necessarily 
and automatically bad because of its narrow gene- 
sis. On the contrary, the long public experience of 
the men who reach these key -positions, and the 
double responsibility which rests upon them be- 
cause of their vantage, might factor for better 
rather than for worse. It is a compliment to the 
fidelity and good purpose of its Managers that the 
House ordinarily serves useful ends. Certainly 
the good conscience of a vast majority of the men 
who sit in the Congress is entirely above reproach. 
But these are all ulterior considerations. Our 
present examination is confined to the proposition 
that the mere multiplication of the agents of 
Government does not spell more effectual democ- 
racy — in other words, that the measure of 
democracy is not a mere matter of numbers — and 
the record and experience of the House of Repre- 
sentatives are unanswerably in point. Indeed, 
when one realizes how thoroughly undemocratic 
the House has made itself by the constant expan- 
sion of its numbers, the wonder is that the House 
succeeds, in useful legislation, as well as it does. 

Occasionally, through the years, sporadic insur- 
gency develops into revolt against Congressional 
servitude. But its attack is always upon the 
method of control, rather than upon the fact of 



268 M Hamilton Mtvt l&ztc Co=Bap 

control itself. There are no more "Czar" Reeds 
or "Czar" Cannons — statesmen as magnificent as 
they were powerful. The Speaker of the House 
has been shorn of his imperious sceptre. But the 
transition merely trades new kings for old. Con- 
trol has slightly broadened to permit authority to 
a few more than one: but it is still the same old 
control, involving the same old servitude. It is 
impossible for the House to escape the incubus of 
numbers. Times change, but there are certain 
principles of Government that remain constant. 
It is human nature that freemen should be perpetu- 
ally in quest of greater efficiency and greater 
democracy in their public affairs; but they always 
err when they suppose it possible to avoid these 
elementary laws of Government. Beyond a 

reasonable and practical point, there is no safety 
and no utility in numbers. The House is enslaved 
through the necessities created by its own over- 
growth. When it becomes smaller, it can become 
more democratic. As it continues, on theotherhand, 
to become larger, it will become more oligarchic. 

In the days of the beginning, Americans had to 
be persuaded that the need for " an actual represen- 
tation of all classes of the people, by persons of 
each class, is altogether visionary," 1 and that any 

1 The Federalist, No. 35. 



M Hamilton Mere l&txt ®o=®ap 269 

such scheme would make the representative body 
"far more numerous than would be consistent 
with any idea of regularity or wisdom in its 
deliberations.'* 1 Modern Americans, for identi- 
cally the same reason, must be persuaded that the 
need of numbers, for the sheer sake of numbers, is a 
treacherous delusion which defeats its own aims. 
Numbers, beyond a certain practical point, impair 
efficiency. 2 Numbers, beyond the limit necessary 
"to guard againt too easy a combination for 
improper purposes," impair resultful democracy. 
Numbers, after the maximum of utility is reached, 
either make for ' ' the confusion and intemperance of 
a multitude" 3 or for the dominion of a few adroit 
and persuasive and not always scrupulous 
exploiteers. 4 

1 The Federalist, No. 36. 

2 When the Supreme Court was enlarged, Justice Story 
wrote, at the end of the 1838 term: "You may ask how 
the Judges got along together. We made very slow prog- 
ress and did less in the same time than I ever knew. The 
addition to our number has most sensibly affected our 
facility as well as rapidity of doing business. ... I verily 
believe, if there were twelve Judges, we should do no busi- 
ness at all, or at least very little." — Life and Letters of Story, 
by William Waldo Story, II., 296. 

3 The Federalist, No. 55 — "Had every Athenian citizen 
been a Socrates, every Athenian assembly would still have 
been a mob." 

4 The Federalist, No. 59 — "It will always multiply the 



270 M Hamilton JHcre %)txt QTo=©ap 

If Hamilton were here to-day, there is no doubt 
what he would say to the modern House of Repre- 
sentatives if it consulted him in regard to re- 
apportionment, as the Congress of his own time 
besought his wisdom upon almost every question 
under the sun. There is no doubt what the sound, 
basic philosophy of the American form of Govern- 
ment recommends. We privately confess an opin- 
ion that We are sacrificing efficiency to size, but we 
publicly continue to pursue the course of least 

resistance. The words of The Federalist, as we 

have here renewed them, wise in their day, even 
wiser in their prophecy, should be read on the 
floor of Congress upon every future decennial 

occasion of a re-apportionment. ■ The House must 
be reduced in size, if it is to be restored to a repre- 
sentative agency of G ov er nm ent that can function 

democratically. 

Such are the results of a laboratory test upon the 
size of the House of Representatives, as a specimen 
of the hollow doctrine that the true measure of 
democracy, in the Republic, is a matter solely of 
"quantity" of popular power. Any doctrine 

chances of ambition, will be a never failing bait to all such 
influential characters as are capable of preferring their own 
emolument and advancement, to the public weal." 
1 The Greatest American, by Vandenberg, 160. 



M Hamilton Mere Here ®o=©aj> 271 

which ignores or denies the real fundamentals of 
American Government, is bound to come to just 
such baneful grief. These "quantitative demo- 
crats" make their initial mistakes when they forget 
the theory of popular control in a Republic. 1 
"The important thing first to be learned is that in 
this democracy the Government is in form a 
Republic, because the Laws are enacted and en- 
forced, not by the direct vote of the people but 
by the representatives elected by the people." 2 
Popular control, in the Republic, is exercised 
through these representatives. The very act of 
choosing representatives is an acknowledgment of 
the American purpose to try to escape the infirmi- 
ties incidental to mass-decisions. If the country 
was too large for mass-decision when it had some 
2,000,000 population at the time of the adoption 
of the Constitution, how astoundingly absurd to 
pretend that we are not too large for mass-decisions 
when there are 100,000,000 of us! If the repre- 
sentative theory was sound then, it is not only 
sound but fifty times as essential now. To accept 
the representative theory, is to abandon the mass- 

1 "A Republic may be defined as a state in which the 
sovereign power rests in the people as a whole, but is 
exercised by representatives chosen by popular vote." — 
Cyclopedia of American Government, III., 188. 

2 The Short Constitution, by Wade and Russell, 41. 



272 M Hamilton EHcre l&zvt ®o=Bap 

decision theory — the notion that the safety of our 
democracy is dependent upon numbers — and any 
attempt to co-mingle the two theories, in practice 
and evolution, is an illogical and dangerous per- 
version. It is exactly such a mixture when the 
representative theory establishes a House of 
Representatives, and the mass-decision theory 
insists upon multiplying the House into a mob. 
The need — the reform reo >mmended by any sym- 
pathetic understanding of the Constitution — is for 
FEWER Congressmen so that they may be MORE 
representative; and then the sovereign power of the 
people must be exercised in holding these agents to 
stricter accountability for their acts. 

"Quantitative democracy 91 is a false beacon in 
every American respect. It is hostile to the theory 
upon which American Government was erected. 
It is contrary to the best practical results — no 
matter how superficially attractive the suave 
advocate may make it. If representatives of the 
people betray their trust, if they fail to serve the 
popular will, it is a vastly better remedy to eject 
the false proxies and choose new and more respon- 
sive agents pursuant to the representative theory, 
than it is to invoke the so-called "initiative," 
pursuant to the mass-decision theory, and thus 
attempt to make a Legislature out of the whole 



M Hamilton Here 3£ere ®o=®ap 273 

people. In the hey-day of this "initiative" fad, 
there have been ballots submitted to the electors 
containing so many "initiated" laws that it would 
require four hours of close attention to even read 
the propositions submitted for plebiscite. In one 
State, at one time, there was a ballot exactly the 
size of the massive double-doors on the Capitol 
building. These are not the methods for obtaining 
the best ordered statutory results. They are not 
the methods contemplated by the Founders of the 
Government. They are inimical to the American 
system. The notion that we must rely upon num- 
bers in order to be safe is effectually exploded by a 
study of the vicissitudes of the House of Represen- 
tatives. It is equally faulty when applied to any 
other phase of American public affairs. This 
Government stands on the theory of popular 
control through adequate and trust-worthy 
representatives. It is the business of mass- 
decision to see that these representatives 
adequately function — not to take functions out of 
their hands or to multiply them to the point of 
impotence. As The Federalist 1 said, we repeat 
that "the security to the society must depend on 
the care which is taken to confide the trust to 
proper hands, to make it their interest to execute 

1 No. 66. 

18 



274 3K Hamilton Mtvt J&tvt ©o=313ap 

it with fidelity, and to make it as difficult as 
possible for them to combine in any interest 
opposite to that of the public good." 

The "fundamental maxim of Republican 
Government, " declared this greatest of all exposi- 
tions of the American system 1 "requires that the 
sense of the majority should prevail." But how 
shall it prevail? "The whole power of the pro- 
posed Government is to be in the hands of the 
REPRESENTATIVES of the people. This is 
the essential, and, after all, only efficacious secur- 
ity for the rights and privileges of the people, 
which is attainable in civil society. 

1 llie Federalist, Xo. 22. 
'Ibid., No. 28. 



"2 



Wyt Safety Valbt 

"In the legislature, promptitude of decision is oftener an 
evil than a benefit. The differences of opinion, and the 
j airings of parties in that department of the Government, 
though they may sometimes obstruct salutary plans, yet 
often promote deliberation and circumspection, and serve 
to check excesses in the majority." — The Federalist, No. 70. 

"The oftener a measure is brought under examination, 
the greater the diversity in the situation of those who are to 
examine it, the less must be the danger of those errors 
which flow from want of due deliberation, or of those mis- 
steps which proceed from the contagion of some common 
passion or interest." — The Federalist, No. 73. 

Perhaps the most familiar and persistent of all 
encroachments, born of these impatient times, is 
the constantly reiterated proposal either to curb the 
authority of the Senate of the United States, or to 
eliminate the Senate entirely as a department of 
American Government. It is a glib text for the 
sophist to promote. That department upon which 
the Constitution premeditatedly puts the burden 
of stopping hasty, headlong legislation, may be 
easily recommended to the displeasure of citizens 

275 



276 3f Hamilton Were J^ere ®o=Bap 

who are disinclined to brook the slightest delays — 
even for purposes of effectual examination — in 
the attainment of immediate objectives. But if 
Hamilton were here to-day, to re-interpret the 
genius of the Constitution and to bespeak the 
admonitions of the Founders, he would not com- 
promise so much as one iota with these refractory 
mutineers who neglect to realize that "haste makes 
waste" in legislation as in life, and who ignore the 
palpable fact that all semblance of resultful 
deliberation would depart from our American 
parliament if the Senate were reduced to impotence. 
If there is one principle more than another upon 
which The Federalist laid down unimpeachable 
logic, it is in the decisive argument defending the 
function of the Senate ; and every proposition which 
it advanced in theory, time has vindicated in 
practice. 

The method of electing Senators has changed. 
Choice by direct vote of the people is substituted 
for choice by the Legislatures of the States. We 
pass the question whether this has improved the 
Senate's personnel. At least, it has brought the 
vSenate one step closer to popular control and makes 
for a direct, popular responsiveness — a thing against 
which there most certainly is no prejudice in the 
Constitution. The Founders, because of their 



M Hamilton Mere Here ©o=Bap 277 

earnest conception of the exalted necessity for 
some such "safety valve" on Government as the 
Senate represents, might have hesitated to weaken 
any of the barriers against impetuosity, if they 
could have been consulted when this reform 
impended. They were constantly thinking of 
Governmental derelicts, all down the shores of 
history, broken on the rocks of passing passions, 
and on the reefs of shifting uncertainties. 1 But 
they would have readily yielded to any Con- 
stitutional Amendment passed in the ordered way; 
and — this is sure — they would not have considered 
the mode of the election of Senators so important 
as a scrupulous preservation of the unadulterated 
functions which the Senate itself was created to 
serve. Furthermore, since the form of election 
has been changed — bringing Senators in direct 
electoral contact with their constituents — they 
would have been strengthened in this latter posi- 
tion, because, with the creation of this direct 
electoral responsibility, all legitimate chance for 

1 The Federalist, No. 9 — " It is impossible to read the his- 
tory of the petty Republics of Greece and Italy without 
feeling sensations of horror and disgust at the distractions 
with which they were continually agitated, and at the rapid 
succession of revolutions by which they were kept in a state 
of perpetual vibration between extremes of tyranny and 
anarchy." 



278 3f Hamilton Mtvt J&zxt ©o=Bap 

argument that the Senate constitutes an un- 
approachable, undemocratic aristocracy of power 
has disappeared. But all the emphasized reasons 
for the Senate's preserved independence im- 
pregnably remain — even more profound in their 
challenge than they were when the Constitution 
was written and when The Federalist presented its 
unanswerable defense. 

A favorite form of attack upon the modern 
Senate is an indictment of its freedom of debate. 
Demands for cloture in the Senate are a familiar 
phenomenon. Indeed, the Senate rules recently 
compromised with this perennial propaganda, to 
the extent of permitting the Senate to vote itself 
into some limitations in this direction. If this 
tendency gains strength, however, and shall ever 
ultimately take from the Senate its traditional 
prerogative to illuminate and ventilate all public 
questions, practically without limit, one of the 
most essential guaranties for safe, sound, and truly 
representative Government will have been swept 
to the discard. We have seen, in the preceding 
chapter, how real democracy has broken down in 
the House; how constricting rules have delivered 
legislation, in the House, into the hands of a few. 
The chief agency through which this break-down 
has been accomplished is limitation of debate. 



M Hamilton (Here 3£ere {Eo=3Bap 279 

We have seen how, in so vital a thing as a great 
tariff law, consideration by the whole House has 
become little more than a perfunctory gesture. 
In thirteen days, the Fordney-McCumber Bill was 
jammed through the lower branch of Congress. 
It had but the shallowest pretense of deliberative 
attention. It was passed as framed and ordered by 
its authors. Because of the size of the House, it 
had to be passed in that fashion or no Law, involv- 
ing such a multiplicity of considerations, could 
have been passed at all. But! In the name of 
sanity, should there be no forum whatsoever in 
which a full and a free discussion can disclose and 
excise, if such be the legislative disposition, the 
rotten spots in these statutes of far-reaching por- 
tent? Should the Senate similarly be gagged and 
bound by rules which shall deliver the complete 
process of law-making in America, to the mandate 
of the select few who hold the reins of power where- 
ever these chains are forged against freedom of 
legislative action? For four months, from April 
20 to August 19, 1922, the Senate gave the Ford- 
ney-McCumber Bill its almost undivided attention. 
Senators — all of them — were free to attack or 
defend any provision in it. Senators — all of them 
— could offer Amendments for the conside.ation 
of the Senate. The Bill was practically re-writ- 



280 M Hamilton QEtxt J^ere ©o=Bap 

ten. ■ Whether it was improved, is beside the point. 
At least, it was put under microscope and search- 
light. At least, the process of debate enlightened 
the country as to what the Bill contained. At 
least, there was representative action and deliber- 
ative action. At least, the Senate adopted some 
2,500 Amendments, some of them fundamental; 
and the retention of most of these Amendments in 
the Bill as finally approved in both Houses, permits 
the inference that they spelled improvement and 
advantage. 

Would it be advisable to shut off this search- 
light, and to discard this microscope? It is 
understandable that there should be irritation 
when Senators take advantage of this freedom of 
debate and wander off into interminable political 
platitudes wholly beside the point : but, for the sake 
of controlling this inconsequential wind, is it wise 
to invite the infinitely greater and more serious 

1 The Searchlight, vol. vii., No. 3, issue of August 31, 
1922, says, in this connection: "The boss system in the 
House is so arrogant, so over-developed, that the House 
has completely broken down as a deliberative body. The 
Senate knows this condition. It pays little more attention 
to the form of measures coming from the House than it 
would to the work of ten-year-old children. The Senate 
re-writes even those Bills which the Constitution requires 
shall originate in the House about as completely as though 
the low r er branch did not exist." 



M ^amttton Mere l&txt Zo=]Bav 281 

irritation that would come to the country if it 
sanctioned a hard-and-fast Senate cloture which 
would deliver Senate destiny into the hands of 
those who made and administered its rules? It is 
understandable that there should be irritable 
protest from the country when the Senate dallies 
in emergency, and seems inexcusably slow in taking 
obviously necessary steps. But is it not better to 
hold dilatory Senators to account to their con- 
stituents upon electoral days of reckoning, than to 
strike down the only barriers left to retard bad, as 
well as good, legislation? 

In the convulsive push for "progressivism" — a 
political habit into which this " speed age" has 
plunged the twentieth century — many citizens 
have become disciples of change simply for the sake 
of change. They are iconoclasts. There is a cur- 
rent restlessness which seems to subscribe to the 
notion that whatever is, is wrong, and that any 
alternative must be for the better. The direct 
nomination and election of Senators has en- 
couraged this trend. It has emphasised 
individualism in our politics. Candidates have 
felt the necessity of attracting an attention which 
regularity and Constitutionalism illy serve. In 
order to be different, they become recalcitrant. 
The need for an issue, in order to justify a candi- 



282 M Hamilton Klerc %)cvc Co=3Bap 

dature, results in the creation of fictitious issues. 
In order to seem to be "progressive," there is an 
inclination to be destructive of the established 
institutions. Often it seems to be a case of any- 
thing to catch the public eye and hold the public 
car and the revolutionist can always attract a 
bigger crowd than the OODServitor of established 
forms. It is in this Geld of weltering ambitions 

that the Senate's freedom of debate is most 

violently pilloried. It 18 a line text for a hot 
speech if the speaker cares not what he says. 
But it is not " progressivism," DO matter what 
livery it pretends to wear. It is "reactionary- 
ism" of the deadliest sort. If the turbulent 
proponent of such doctrine would give himself a 
second thought, he WOUld readily see the pathetic 
inconsistency of his own position. In one breath, 
he damns the "gag rules" of the House — this is his 
constant stock in trade: and in the next breath, he 
damns the Senate for lack of "gag rules"! No 
wonder the Fathers of America thought that their 
Government needed a safety valve! 

Probably it will be conceded that Senator 
William E. Borah of Idaho is the outstanding 
"progressive" in the present Congress. Senator 
Borah says: "I should regard a limitation on 
debate in the Senate as reactionary to the last 



M Hamilton Were ?£ere ©o=2Sap 283 

degree. There is no protection for the public in 
these days except in the fullest senatorial debate." 
That should end for-keeps any mistaken idea that 
it is ''progressive" to throttle down the only free 
forum left in the American system of Federal 
government. With Hamilton and Borah in accord 
on this proposition — at the two extremes of a 
century of American experience — there is precious 
little meritorious argument left to defend a counter 
posture. Under such circumstances, could any- 
thing read a more earnest warning to the average 
citizen, reminding him of the danger of snap judg- 
ments based upon insufficient information, than 
the easy inclination of this same average citizen to 
fall in with the heretical idea that the Senate's 
freedom and independence are a menace to 
democracy? 1 

Senator Borah adds this thought : "It is just as 
much the duty of the Congress of the United 

1 United States Circuit Court Judge William S. Kenyon 
of Fort Dodge, Iowa, while a member of the Senate was 
one of its soundest and thoroughly progressive members. 
He was generally looked upon as a progressive leader. 
"While a member of the Senate," declares Judge Kenyon, 
"I was opposed to changing the rules which allowed free 
and unlimited discussion. While it may at times be 
abused, it would be much worse to abandon this right of 
free speech. I have not changed my opinion since leaving 
the Senate." 



284 3ff Hamilton i2Jere %)txt £o=£)ap 

States to inform public opinion as it is to frame 
statutes." Information is served only through 
untrammeled debate. The country, prc-occupied 
with its own material affairs, knows little enough 
of its own public affairs, at best. If it had 
to depend upon the gagged House of Represen- 
tatives for information, it would get even less than 
is its existing limited appropriation. The country 
has learned more about its own problems as a 

result of Senate debates, invariably reported 

liberally in the American press, than through any 

other SOUH '"It is a misfortune," said The 

Federalist, "inseparable from human affairs, that 
public measures are rarely investigated with that 
spirit of moderation which is essential to a just 
estimate of their real tendency to advance or 

obstruct the public good; and that this spirit is 
more apt to be diminished than promoted by those 
occasions which require an unusual exercise of it." 
In other words, we are prone to jump at con- 
clusions. Tlie whole people-, when adequately 
informed upon a public problem, can always be 
safely left to a majority verdict; and rarely will 
they go wrong. But the "adequate information" 
is pre-requisite. Unquestionably it is the duty of 
Congress to lead in this informative process. The 
1 No. 37. 



M Hamilton Were ^ere ®o=®ap 285 

Senate, under existing circumstances, must be the 
principal forum in which this obligation is served. 
And who shall say that there are not occasions 
when, first, the power of the Senate to prevent 
precipitous decision, and, second, the opportunity 
of the Senate to better inform the country upon the 
merits of the matter in issue, have not saved the 
country — and will not save it again — from sum- 
mary actions which it would later regret? Assum- 
ing, for example, that the unprecedented electoral 
majority won by the Republican party in Novem- 
ber, 1920, reflected the country's over-whelming 
approval of Republican refusal to project the 
United States unreservedly into a League of 
Nations, the Senate's freedom of debate — and that 
alone — must be credited with delaying the 
country's initial, head-long eagerness to rush into 
the League, then with informing public opinion to 
an extent which ultimately brought a profound 
reversal in attitude, and, finally, in saving the 
Nation from a step which it would have lived to 
regret in sack cloth and ashes. The merits of the 
League of Nations have nothing to do with this 
contemplation. Whether we should or should not 
have entered, is beside the point. The point is 
that the country, rightly or wrongly, reversed 
itself when the subject was wholly ventilated; and 



286 3f Hamilton Miere fterc £o=Bap 

it would never have been ventilated if the Senate 
had not been an un trammeled body. There is a 
school of thought — catering to the passion rather 
than the sense of those cajoled — which loves to 
pretend that the people, even in their sudden 
inclinations, never err. This is absurd. It is 
demagogy. There is always chance for error 
where there is lack of opportunity for information. 

It is no reflection upon democracy to admit this 
truth — any more than it is a reflection upon a 

man's eye-sight to say that lie cannot see in the 

dark. 1 Once provided with full information, the 
majority opinion of tin- people of the United States 
will FBiely err. If it does, under such circum- 
stances, it is a fatality, incidental to democracy, 
which must be accepted. But if the Senate pro- 
vides a "Stop! Look! Listen!" semaphore at 
least serving to prevent the unnecessary fatality of 

Uninformed error is it not as invaluable and as 

indispensable as the kindred warning signals which 

1 Senator Henry Cabot I -sing the initiative, 

1 in a Boston speech in io<»; "Suppose I say to you 
that I do not think you can read in the dark. Do I thereby 
imply that your ey had or that I think you are illiter- 

ate or ignorant ? Because I / that you cannot read in the 
dark, am I therefore to be accused of exhibiting distrust in 
your intelligence or your education!" . . . What I distrust 
and assail as a barrier to reading is the darkness. In 
order to read you must have light." 



M Hamilton Were ©ere ®o=2Sap 287 

line the highways of the Nation to protect our 
physical lives in like danger? Does not candor 
compel acquiescence when The Federalist 1 says: 

"The republican principle demands that the 
deliberate sense of the community should govern 
the conduct of those to whom they intrust the 
management of their affairs ; but it does not require 
an unqualified complaisance to every sudden breeze 
of passion, or to every transient impulse which 
the people may receive from the arts of men, who 
flatter their prejudices to betray their interests. 
It is a just observation that the people commonly 
INTEND the PUBLIC GOOD. This often ap- 
plies to their very errors. But their good sense 
would despise the adulator who should pretend 
that they always REASON RIGHT about the 
MEANS of promoting it. They know from 
experience that they sometimes err; and the 
wonder is that they so seldom err as they do, beset, 
as they continually are, by the wiles of parasites 
and sycophants, by the snares of the ambitious, 
the avaricious, the desperate, by the artifices of 
men who possess their confidence more than they 
deserve it, and of those who seek to possess rather 
than to deserve it. When occasions present them- 
selves, in which the interests of the people are at 

r No. 71. 



288 Sf Hamilton ililcve tytxt &o=©ap 

variance with their inclinations, it is the duty of 
the persons whom they have appointed to be the 
guardians of those interests, to withstand the 
temporary delusion, in order to give them time and 
opportunity for more cool and sedate reflection. 
Instances might be cited in which a conduct of this 
kind has saved the people from very fatal con- 
sequences of their own mistakes, and lias procured 
lasting monuments of their gratitude to the men 
who had courage and magnanimity enough to serve 
them at the peril of their displeasure. 91 

The Senate was created to serve, among other 
essentialities, this stability and this security; not 
to bar the mature, enlightened, deliberate judg- 
ment of the people, but to bar the perversities of 

undigested, sua]) conclusions. The Federal Legis- 
lature-, without a Senate thus Functioning, would be 
like an automobile that is all accelerator and no 
brake. Traffic Laws, for the motorist, invade 
pure freedom; but they are indispensable to safety. 
The legitimate functions of the Senate, in relation 
to legislation, are no different. 

Some irrational critics would abolish the Senate 
entirely. f Some thoroughly earnest and sustained 

1 The National Platform of the Socialist Party adopted 
at Indianapolis, May 16, 191 2, demanded "the abolition of 
the Senate and of the veto power of the Presidents." 



M Hamilton Mere ^ere ®o=Bap 289 

students would delimit certain of the Senate's 
affirmative powers — as, for instance, its two-thirds 
vote upon the ratification of treaties, which, 
according to this view-point, renders it too difficult 
for an Administration to rush us into international 
contracts. Still others would emasculate the 
general rules of Senate conduct, so as to more 
nearly reduce the senatorial personality to the 
impotence suffered by individual statesmen in the 
other and lower House. But comprehensive 
Americans, sensible of history, experience, and the 
necessities of our representative system of Govern- 
ment, will yield to none of these. The pretended 
advantages claimed for any or all of these reforms, 
are as nothing compared with the menace medi- 
tated against the public weal. 

This does not mean that the Senate is sacrosanct. 
If Hamilton were here to-day, there undoubtedly 
are many phases of Senate ritual which would 
challenge his hostility. For instance, one can 
well imagine how this tremendous man, who was a 
pivotal member of the Constitutional Congress at 
the age of twenty-five, who was the heroically 
dominant factor in the New York Constitutional 
Convention at the age of thirty-one, and who, at 
the age of thirty-two, was the master craftsman 

in the first cabinet of President Washington; one 
19 



290 3ff Hamilton Were f^ere ®o=2Sap 

can well imagine, we repeat, how Hamilton would 
scorn the Senate's u seniority rule" under which 
length of service, regardless of quality of talents, 
dictates the filling of key-chairmanships, and 
under which youth, regardless of its capacity, is 
fore-closed from leadership. 1 On the other hand, 
youth, without capacity or without experience, 
would no more win his applause than would 
maturity which failed to develop capacity out of 
experience. In other w r ords, he unquestionably 
would look askance at any rigid formula which 
denied the country the maximum benefit of 
senatorial merit. 

The Senate is not sacrosanct. In its membership 
to-day, Hamilton might look in vain for a pre- 
ponderance of the sturdiest and ablest men of the 
time, finding the rule of his day now proven by its 
exceptions. But, regardless of moot incidents, he 
would uncompromisingly demand unswerving 
fidelity to the basic functions which the Senate 
serves ; and he would present an iron opposition to 
all insidious efforts, no matter what their guise or 
pretense, to make the Senate less formidable in its 
essential prerogatives. In a word, he would con- 

1 The average age of the entire membership of the Con- 
vention which framed the Federal Constitution was 43! 
years. — The Short Constitution, by Wade and Russell, 71. 



M Hamilton ffliere Jfytvz ®o=3@ap 291 

tinue to stand for the theory of the Constitution. 
"In every governmental process," said Theodore 
Roosevelt, 1 "the aim that a people capable of self- 
government should steadfastly keep in mind, is to 
proceed by evolution rather than revolution." 
This is to say that a people capable of self-govern- 
ment, will always proceed inside — not outside — 
the Constitution and its theory and its purposes; 
also that it is often as fatal to deny the Consti- 
tution in spirit as in letter. 

Never has the plain, convincing logic of The 
Federalist 2 been excelled in its exposition of the 
functions and the necessities of an independent, 
untrammeled Senate in the American scheme. 
Those impatient souls which incline to rebel against 
this branch of Government, would do well to 
linger upon these sagacious words, as applicable, 
in every phrase and phase, to the conditions of 
to-day as to the nascent era of our history. 

"First. It is a misfortune incident to republi- 
can government, though in a less degree than to 
other governments, that those who administer 
it may forget their obligations to their constitu- 
ents, and prove unfaithful to their important trust. 
In this point of view, a senate, as a second branch 

1 Speech at Wheeling, West Virginia, September 6, 1902. 

2 Nos. 62 and 63. 



292 M Hamilton Mere J&ere ®o=®ap 

of the legislative assembly, distinct from, and 
dividing the power with, a first, must be in all cases 
a salutary check on the government. It doubles 
the security of the people, by requiring the con- 
currence of two distinct bodies in schemes of 
usurpation or perfidy, where the ambition or cor- 
ruption of one would otherwise be sufficient. This 
is a precaution founded on such clear principles, 
and now so well understood in the United States, 
that it would be more than superfluous to enlarge 
on it. I will barely remark, that as the improb- 
ability of sinister combinations will be in pro- 
portion to the dissimilarity in the genius of the 
two bodies, it must be politic to distinguish them 
from each other by every circumstance which will 
consist with a due harmony in all proper measures, 
and with the genuine principles of republican 
government. 

"Secondly. The necessity of a senate is not 
less indicated by the propensity of all single and 
numerous assemblies to yield to the impulse of 
sudden and violent passions, and to be seduced 
by factious leaders into intemperate and pernicious 
resolutions. Examples on this subject might be 
cited without number ; and from proceedings within 
the United States, as well as from the history of 
other nations. But a position that will not be 



M Hamilton Mere J^ere ©o=®ap 293 

contradicted need not be proved. All that need be 
remarked is, that a body which is to correct this in- 
firmity ought itself to be free from it, and conse- 
quently ought to be less numerous. It ought, 
moreover, to possess great firmness, and conse- 
quently ought to hold its authority by a tenure of 
considerable duration. 

" Thirdly. Another defect to be supplied by a 
senate lies in a want of due acquaintance with the 
objects and principles of legislation. It is not 
possible that an assembly of men called for the 
most part from pursuits of a private nature, con- 
tinued in appointment for a short time, and led 
by no permanent motive to devote the intervals 
of public occupation to a study of the laws, the 
affairs, and the comprehensive interests of their 
country, should, if left wholly to themselves, escape 
a variety of important errors in the exercise of their 
legislative trust. It may be affirmed, on the 
best grounds, that no small share of the present 
embarrassments of America is to be charged on 
the blunders of our governments; and that these 
have proceeded from the heads rather than the 
hearts of most of the authors of them. What 
indeed are all the repealing, explaining and amend- 
ing laws, which fill and disgrace our voluminous 
codes, but so many monuments of deficient 



294 3W Hamilton Mere J&zvt ®o=3Bap 

wisdom ; so many impeachments exhibited by each 
succeeding against each preceding session; so 
many admonitions to the people of the value of 
those aids which may be expected from a well- 
constituted senate? 

"A good government implies too things: first, 
fidelity to the object of government, which is the 
happiness of the people; secondly, a knowledge 
of the means by which that object can be best 
attained. Some governments are deficient in both 
these qualities; most governments are deficient in 
the first. I scruple not to assert that in American 
governments too little attention has been paid to 
the last. The federal Constitution avoids this 
error; and what merits particular notice, it provides 
for the last in a mode which increases the security 
for the first. 

"Fourthly. The mutability in the public coun- 
cils arising from a rapid succession of new members, 
however qualified they may be, points out, in the 
strongest manner, the necessity of some stable 
institution in the government. Every new election 
in the States is found to change one half of the 
representatives. From this change of men must 
proceed a change of opinions ; and from a change of 
opinions, a change of measures. But a continual 
change even of good measures is inconsistent with 



3f Hamilton Were %ere tEo=23ap 295 

every rule of prudence and every prospect of suc- 
cess. The remaik is verified in private life, and 
becomes more just, as well as more important, in 
national transactions. 

"To trace the mischievous effects of a mutable 
government would fill a volume. I will hint a few 
only, each of which will be perceived to be a source 
of innumerable others. 

"In the first place, it forfeits the respect and 
confidence of other nations, and all the advantages 
connected with national character. An individual 
who is observed to be inconstant to his plans, or 
perhaps to carry on his affairs without any plan at 
all, is marked at once by all prudent people, as a 
speedy victim to his own unsteadiness and folly. 
His more friendly neighbours may pity him, but 
all will decline to join their fortunes with his; and 
not a few will seize the opportunity of making 
their fortunes out of his. One nation is to another 
what one individual is to another; with this 
melancholy distinction perhaps, that the former, 
with fewer of the benevolent emotions than the 
latter, are under fewer restraints also from taking 
undue advantage from the indiscretions of each 
other. Every nation, consequently, whose affairs 
betray a want of wisdom and stability, may calcu- 
late on every loss which can be sustained from the 



296 M Hamilton Mere J^ere ®o=Bap 

more systematic policy of their wiser neighbours. 
But the best instruction on this subject is un- 
happily conveyed to America by the example 01 
her own situation. She finds that she is held in no 
respect by her friends; that she is the derision of 
her enemies; and that she is a prey to every nation 
which has an interest in speculating on her fluctu- 
ating councils and embarrassed affairs. 

"The internal effects of a mutable policy are still 
more calamitous. It poisons the blessing of liberty 
itself. It will be of little avail to the people that 
the laws are made by men of their own choice, if 
the laws be so voluminous that they cannot be 
read, or so incoherent that they cannot be under- 
stood; if they be repealed or revised before they 
are promulgated, or undergo such incessant 
changes that no man, who knows what the Law is 
to-day, can guess what it will be to-morrow. Law 
is defined to be a rule of action; but how can that 
be a rule which is little known and less fixed? 

" Another effect of public instability is the 
unreasonable advantage it gives to the sagacious, 
the enterprising, and the moneyed few over the 
industrious and uninformed mass of the people. 
Every new regulation concerning commerce or 
revenue, or in any manner affecting the value of 
the different species of property, presents a new 



M Hamilton Mere 2£ere Co=®ap 297 

harvest to those who watch the change and can 
trace its consequences; a harvest, reared not by 
themselves, but by the toils and cares of the great 
body of their fellow-citizens. This is a state 
of things in which it may be said with some truth 
that laws are made for the few, not for the many. 

"In another point of view, great injury results 
from an unstable government. The want of 
confidence in the public councils damps every 
useful undertaking, the success and profit of 
which may depend on a continuance of existing 
arrangements. What prudent merchant will haz- 
ard his fortunes in any new branch of commerce 
when he knows not but that his plans may be 
rendered unlawful before they can be executed? 
What farmer or manufacturer will lay himself out 
for the encouragement given to any particular 
cultivation or establishment when he can have no 
assurance that his preparatory labours and ad- 
vances will not render him a victim to an 
inconstant government? In a word, no great 
improvement or laudable enterprise can go forward 
which requires the auspices of a steady system of 
national policy. 

"But the most deplorable effect of all is that 
diminution of attachment and reverence which 
steals into the hearts of the people towards a 



298 M Hamilton Witvt l&zvt ©o=©ap 

political system which betrays so many marks of 
infirmity, and disappoints so many of their flatter- 
ing hopes. No government, any more than an 
individual, will long be respected without being 
truly respectable nor be truly respectable without 
possessing a certain portion of order and stability. 

"A fifth desideratum, illustrating the utility of a 
senate, is the want of a due sense of national 
character. Without a select and stable member of 
the government, the esteem of foreign powers will 
not only be forfeited by an unenlightened and 
variable policy, but the national councils will not 
possess that sensibility, etc. 

44 Yet however requisite a sense of national 
Character may be, it is evident that it call never be 
sufficiently possessed by a numerous and change- 
able body. It can only be found in a number so 
small that a sensible degree of the praise and blame 
of public measures may be the portion of each 
individual; or in an assembly so durably invested 
with public trust, that the pride and consequence 
of its members may be sensibly incorporated with 
the reputation and prosperity of the community. 

11 A 'sixth defect.' It is evident that an assembly 
elected for so short a term 1 as to be unable to pro- 
vide more than one or two links in a chain of 

1 The House. 



M Hamilton Were Here Zo=3Bap 299 

measures, on which the general welfare may 
essentially depend, ought not to be answerable 
for the final result, any more than a steward or 
tenant, engaged for one year, could be justly made 
to answer for places or improvements which could 
not be accomplished in less than half a dozen years. 
"I shall not scruple to add that such an institu- 
tion may be sometimes necessary as a defence to 
the people against their own temporary errors and 
delusions. As the cool and deliberate sense of 
the community ought, in all governments, and 
actually will, in all free governments, ultimately 
prevail over the will of its rulers; so there are 
particular moments in public affairs when the 
people, stimulated by some irregular passion, or 
some illicit advantage, or misled by the artful 
misrepresentations of interested men, may call for 
measures which they themselves will afterwards 
be the most ready to lament and condemn. In 
these critical moments, how salutary will be the 
interference of some temperate and respectable 
body of citizens in order to check the misguided 
career, and to suspend the blow meditated by the 
people against themselves, until reason, justice, 
and truth can regain their authority over the public 
mind? What bitter anguish would not the people 
of Athens have often escaped if their government 



300 M Hamilton Were Here ®o=3Sap 

had contained so provident a safe-guard against 
the tyranny of their own passions? Popular 
liberty might then have escaped the indelible 
reproach of decreeing to the same citizens the 
hemlock on one day and statues on the next. 

"It adds no small weight to all these consider- 
ations to recollect that history informs us of no 
long-lived republic which had no Senate/ ' 



tEfie Jfotmtain 3|eab 

"Talents for low intrigue and the little arts of popularity 
may alone suffice to elevate a man to the first honours in a 
single State; but it will require other talents, and a different 
kind of merit, to establish him in the esteem and confidence 
of the whole Union, or of so considerable a portion of it as 
would be necessary to make him a successful candidate for 
the distinguished office of President of the United States." — 
The Federalist, No. 68. 

Last, but far from least, in the departments of 
American Government, is the Executive. Also, 
it is far from least in the vehemence and persistence 
with which its Constitutional credentials have been 
and still are, attacked. But in proportion as the 
Presidency of the United States is important — and 
it is perhaps the most honorable and the most 
powerful individual position in the entire world — 
it becomes correspondingly important to scrupu- 
lously protect its Constitutional approaches, and 
to deviate from established Constitutional prac- 
tice only with the utmost assurance that the inno- 
vation is for better and not for worse. Destruc- 
tion is easier than replacement. It is a much 

301 



302 M Hamilton Wtxt T&txt Co=©ap 

simpler thing to be critical than to be correct. 
The Electoral College, through which Presidents 
are finally chosen, is as little understood as it is 
little appreciated. The direct election of Presidents 
is a reform as superficially appealing as it is in- 
herently dangerous — dangerous, it will be shown, 
to the very democracy in whose name it is urged. 
The Presidency is, in practice, the fountain- 
head of American Government. Tampering with 
the fountain-head is a hazardous enterprise and a 
heavy responsibility. However much truth may 
reside in the very general opinion that the people, 
in reality, have too little to say about who shall be 
President, the fact remains that America has been 
almost uniformly fortunate in the choice of all of 
her Chief Executives. Particularly in heavy crisis, 
the man for the occasion usually seems to occupy 
the White House. "The proof of the pudding is in 
the eating." Once more, the quality of results 
obtained by and for our democracy, is of greater 
import than the quantity of power which the 
democracy itself may exercise. It cannot be dis- 
puted that, in the last analysis, the Presidency is in 
the keeping of the people. With such a premise, 
and with the equally indisputable conclusion that 
these processes of popular control, however de- 
vious, produce an eloquently high average of satis- 



3f Hamilton Mere Here tKoJiap 303 

factory results, the machinery for making Presi- 
dents deserves a far more favorable American 
opinion than it possesses; and old cogs should not 
be traded for new except as their superior ad- 
vantage is susceptible of convincing proof. 

No less than ten different plans for electing the 
President were submitted to the original Con- 
stitutional Convention, in 1787. When these di- 
vergent views finally were composed, the method 
designated met with very general approval. The 
Electoral College device seemed to appeal to popu- 
lar reason. But the Presidency itself — the position, 
its attendant power, its dominant occupant — was 
the target for bitterly incontinent attack. An 
affinity was pretended between this new position 
and the royal prerogatives of an unlimited King. 
Nowhere else in The Federalist, which is notable 
for its uniformly good temper in breaking lances 
with the Constitution's adversaries, does Hamilton 
verge so close to anger and anathema as in confront- 
ing these presidential critics with their own mental 
dishonesty. " There is no man who would not 
find it an arduous effort either to behold with 
moderation, or to treat with seriousness, the de- 
vices, not less weak than wicked, which have been 
contrived to pervert the public opinion in relation 
to this subject. They so far exceed the usual 



304 3f Hamilton Mere J^ere ©o»3@ap 

though unjustifiable licenses of party artifices, 
that even in a disposition the most candid and 
tolerant, they must force the sentiments which 
favour an indulgent construction of the conduct of 
political adversaries to give place to a voluntary 
and unreserved indignation. It is impossible not to 
bestow the imputation of deliberate imposture and 
deception upon the gross pretense/' 1 . . . Yet, 
despite this malevolent hostility to the Presidency 
— hostility supported by what Hamilton branded 
as a "shameful outrage to the dictates of truth 
and the rules of fair dealing" — the Electoral Col- 
lege method of filling the position was v^ery gener- 
ally accepted. Thus accredited, even by the Con- 
stitution's enemies, in the inception, the mechan- 
ical principle involved has withstood the attacks of 
a century. Occasional emergency has resulted in 
alteration of the mode in which the Presidential 
Elector functions. But the Constitutional provi- 
sion never has been disturbed since the ratification 
of the Twelfth Amendment, September 25, 1804, 
and that Amendment merely changed the form of 
the Elector's ballot, requiring him to vote separ- 
ately for President and Vice President so as to 
avoid a repetition of the Jefferson-Burr dead- 
lock and intrigue, without disturbing the Electors* 
1 The Federalist, No. 67. 






:, their* 
appre-J 
iappcn, | 
care of 
ad dif- 
many 
he Uwj 
rd with} 
lifficul- 
rfcribcs 
hich by 
Son, it 
td total 
jrefcut, 
?r|are», 
(halt be 
be laid 
Ot built 

>je<fl tO 

i on ail 
r thaa 
f ter rlie 
by this 
* on at! 
ihrem, 
rr Ctrl' 
colt." 
iliftN, is 
encou- 
?s: Yet 
arc ag- 
ing no 
vere at 
e State, 
I in the 
gconfi- ; 
nc. 

ully re- 
l to take I 

t ^ f •• 1 1- K 



To the People of America* 

A: IONGST the numerous publications that 
that have iflued from the prefs, on the fuhjc& 
of Federal Government, none have attracted the 
public attention more than that entitled the FEDE- 
RALIST, under the f/^nature of PUBLIUS :— 
Thejuftnefs of t?*e reafoning, the force of the ar- 
guments, and the beauty of the language, which 
diflinguifh 'his performance, have juftly recom- 
mended it to general applaufe. 

To attain a competent knowledge of the advanta- 
ges to be derived from adopting the propofed Fe- 
deral Conduction, is no doubt the Gncere wilh of 
every true friend to his country : — This performance 
being entirety free from party fpirit and perfonal 
invrcftive, \i ikerefore weJI calculated to accomplish 
fo drlireable an end. 

The avidity with which this writer's pieces have 
been fought after by politicians and perfons of every 
defcription, ind the particular attention the differ- 
ent Printers throughout the United States have 
fhewn them by regular infertions in their prpers, 
are com lufive proofs of the fuperior excellence of 
this elegant political production. The manner in 
which the author treats and difcufles the controvert- 
ed pans of the ConftUution, difpfays much informa- 
tion, patriotifm and candor, and can hardly fail of 
meeting with a favorable recrption from the oppo- 
fers, as well as the advocates of the new fyftcm of 
government. 

Under this perfuafton the publishers flatter them- 
felves with the countenance and fupport of the Ci- 
tizens ofAmerica, to a publication evidently writtea 
to promote their welfare, happinefs and profperi* 



Jr. the Prefs and Jpeeddf <u!U be puhU/het^ 

Tb^ Frrnpp a i icrr 



306 M Hamilton Mere l&txt tCo=25ap 

less actual popular power than now exists — 
though its gesture is otherwise. The matter is 
worthy of unprejudiced examination. 

(i) The complete elimination of Presidential 
Electors or any other intermediary step in the 
quadrennial electoral process, and the substitution 
of a system of choice by total nation-wide popular 
vote for candidates for President, would put the 
choice of President largely in the hands of a few 
ultra-populous States. This is obvious. For ex- 
ample, the States of New York and Pennsylvania 
cast more votes in the Presidential election of 1920 
than all of the following States combined : Alabama, 
Arizona, Connecticut, Colorado, Delaware, Flor- 
ida, Georgia, Idaho, Kansas, Louisiana, Maine, 
Mississippi, Montana, Nevada, New Hampshire, 
New Mexico, North Dakota, Oregon, Rhode 
Island, South Dakota, South Carolina, Utah, Ver- 
mont, Virginia, Washington and Wyoming. If 
the total tally sheet for the Nation controlled the 
election, would not the dominant influence always 
reside in a comparatively few populous States? 
So long as there is an intermediate step, so long as 
each State's vote is counted by itself, an over- 
whelming majority in Michigan, for Michigan's 
choice, for example, cannot be used to entirely 
submerge and practically wipe out the smaller 



M Hamilton Were J^ere ©o=©ap 307 

majorities in half a dozen other and smaller States 
against the candidate who is Michigan's choice. 
In other words, Michigan's total vote is a unit unto 
itself. By sheer bulk of population it cannot, to 
all intents and purposes, disfranchise a group of 
smaller States whose contrary majorities might be 
wholly swallowed up in Michigan's figures if a 
straight balance sheet for the whole Nation were 
struck. The Fathers of the Republic refused to 
consent to the proposition that "population" is the 
only thing entitled to representation in a represen- 
tative democracy. They recognized the important 
contribution made to the national life by great 
agricultural areas, for example, where the density 
of population would be comparatively low. They 
insisted that big States, speaking in terms of mere 
population, should not wholly dominate little States 
with big and important resources in other direc- 
tions. For this reason, primarily, they gave every 
State, regardless of size, two votes in the United 
States Senate. For the same reason, they insisted 
upon segregating unto itself the vote for President 
in each State. They were wise in their generation; 
and their wisdom, in this respect, is even more 
pertinent to-day. It would indeed be pathetically 
poor public policy to deliver sled-length dominion 
over the whole country into the hands of the thickly 



308 M Hamilton Mere l&tvt ©o=2Sap 

populated, closely congested, industrial centers of 
the land, because these centers, more than any- 
other areas, are constantly exposed to the dangers 
that accompany the restlessness and the radicalism 
inherent in bulked and floating masses of people. 
The Federalist 1 recognized the fact that the popu- 
lous States would " always contend for a part : ci- 
pation in the Government, fully proportioned to 
their superior wealth and importance"; also that 
the smaller States " would not be less tenacious of 
the quality enjoyed by them" in the old Confedera- 
tion; therefore, that, since "neither side would 
entirely yield to the other, the struggle could be 
terminated only by compromise." The " compro- 
mise" was a happy one; and the subsequent popu- 
late evolution of the country has multiplied its 
justification. For example, in the Presidential 
election of i860, Douglas, the champion of " squat- 
ter sovereignty " carried only two States, yet his 
popular vote reached the threatening total of 
1 ,376,000 — only 500,000 popular votes behind 
Lincoln. Suppose he had similarly carried just 
one State more ; and suppose we had been electing 
Presidents by merely totaling all the popular votes ! 
Suppose that, and you can then figure out what 
might have happened to America without a Lin- 
1 No. 37. 



M Hamilton Here 3£ere ®o=l9ap 309 

coin in a Civil War ! It requires no stretch of the 
imagination to picture a situation in which those 
same two States, joined by but two or three more, 
could, by virtue of mere bulk population, out- vote 
the balance of the Nation and elect a President 
acceptable to but one little corner of the Country. 
Would that be more " representative/' in net effect? 
On the contrary, would it not be vastly less "rep- 
resentative" in the true, American sense of that 
word? For some pseudo-reformers, the Constitu- 
tion is little more than an inherited and irksome 
hobble; but the more carefully its blessings are 
analyzed, the more respectful thoughtful men must 
become in the presence of its advice. 

(2) There are other less destructive gentlemen 
who would eliminate the Presidential Elector, put 
the name of Presidential candidates directly on the 
voters' ballots, but still assemble the votes by 
States, instead of in the Nation at large, and then, 
finally, let each State count, as now, in the final 
reckoning at Washington. In other words, they 
would avoid the menace described in the preceding 
paragraph. To all intents and purposes, they 
would leave the counting system as it is. Their 
essential change would provide that the individual 
would vote directly for Harding instead of for 
the State's slate of Harding Presidential Elec- 



310 M Hamilton Mere Here tCo=29ap 

tors. r The casual observer may find much ado about 
nothing in an argument against a proposal which thus 
may seem, on the surface, like a distinction without a 
difference . But the ' ' difference , ' ' upon examination, 
proves to be decidedly profound, and to involve cor- 
relary considerations of very definite importance. 

The best approach to these latter contemplations 
is through the explanation of an earnest statesman 
who believes in this proposed reform. 2 "In order 
to be elected President," he declares, "it is neces- 
sary to be nominated by some political party. 
There is no other practical way so long as our anti- 
quated Electoral College remains a part of the 
Constitution. ... If the Electoral College were 
abolished, then independent candidates for Presi- 
dent could have their names placed upon the official 
ballots of the various States by complying with the 
methods provided by State statutes. . . . Aboli- 
tion of the Electoral College would make it not 
only possible but practical for the people to disre- 
gard party and to elect independent candidates. 
It would place the office of President of the United 
States within the hands of the people themselves." 

1 Senate Joint Resolution 151, introduced January 4, 1922, 
by Senator George W. Norris of Nebraska. 

2 Interview with Senator Norris, Chicago Tribune, Janu- 
ary 14, 1922. 



M Hamilton Were T&txt ®o=®ap 311 

Let us see whether, in ordinary practice, the net 
result would not be actually to take the office of 
President farther away from the hands of the 
people themselves. 

It is urged, it will be noted, that the elimination 
of the Electoral College — which, of course, requires 
a nation-wide, organized sentiment behind a 
Presidential candidate ere his proxies, his Presi- 
dential Electors, can be nominated in all the States 
— would make it easier for independent candidates 
for President to qualify. x If they could not qualify 
in all the States, they could qualify in a few. Spor- 
adic and immature political rebellion could more 
easily capitalize itself. In a word, it would be 
easier for ambitious gentlemen to run for President. 
By the same token, there would be more of them 
running. Here, an "agricultural bloc" would have 
a nominee for President. There, a "labor bloc" 
would enter its favorite upon the lists. There 
would be a "wet bloc," a "dry bloc" and a "moist 
bloc." With major political parties disintegrated 
and all emphasis put upon "independent" candi- 

1 As a matter of fact, of course, the existing system does 
not prevent independent candidatures when there is nation- 
wide justification. When there is a real and a formidable 
excuse for political insurgency, the Electoral College is no 
inconvenience whatsoever. Witness the Roosevelt cam- 
paign of 1 912. 



3i2 If Hamilton illerc llnvc XoJUav 

dates — all easily qualifying for place ( >n the ballot — 
there would be a vast decentralization of political 

affiliations. Without the traditional rallying 

points, and with political oentrifugalizatioa sus- 
pended, the natural tendency would be toward 

re-organization into these groups. All such things 
as mally crystallized popular opinion easily 

could disappear. We should have many Candida' 

for President instead of a well emphasised few. 

It would be a rai which would give any our 

''independent "candi • rident such sudden 

eonnnand of t! it flung, and equally fickle, 
cb 'ral affi i American peojpL b i 

win an ( nty. I I «• to the 

inevitable conclusion thai 

tions would show a a v. t, thru, \g the 

net result? The election i .not by the 

people at all, but by the II Representath 

— the forum into which I lection ha 

thrown in the ev< I in\\w amajorityofj 

r any one candidate. ' The election of Vi< 

Presidents, not by the people at all, but by the 

oate- the forum pr 

1 The v mpreh< ion, 

with only in II 

under the Constitution. thai ^ny 

sysl ■ under which a 

a minority of the Stat 



M Hamilton Mere Here tE;o=®ap 313 

Not a step forward: a step backward. Not more 
democracy, but less — distinctly counter to the 
proletarian purposes in which such enterprise is 
always clothed. 

In all the long Congressional debates in Congress 
during the past one hundred years in relation to this 
moot question, if there has been one point more 
than another where opposing factions have found 
invariable concert, it has been on the proposition 
that it is a bad thing for America to have Presi- 
dents chosen by Congress. Under the existing 
Electoral College system, with its discouragements 
to independent candidatures, a majority of States, 
in a Presidential election, rarely fails to material- 
ize. We have not experienced such a case since 
1825 — and at that time, parties were not really 
existent. But under any of these proposed sub- 
stitutes for the Electoral College, a majority would 
become the exception rather than the rule. The 
choice of a President by the people, by the same 
token, would become the exception rather than the 
rule. When President Garfield was in Congress, r 
he urged that " liberty is impossible without a clear 
and distinct separation of the three powers of 

1 These quotations are all from an illuminating book 
entitled The Electoral System in United States History, by 
J. Hampden Dougherty. 



314 3K Hamilton Mere Here ®o=Bap 

Government.' ' Senator Sherman, in the debates 
of 1886, referring to another phase of the same 
problem, condemned any Legislative invasion of 
the Presidential field, declaring it to be " a thing 
not only never dreamed of by the Fathers, but 
the possibility of which they believed they had 
effectually averted." "One central truth illumi- 
nates the wearisome discussions before the Electoral 
Commission of 1887," says Dougherty in his admir- 
able book upon the Electoral System, "that the 
reat effort of the framers of the Constitution was 
to make the Executive independent of the legisla- 
tive, and to place the election of the President 
beyond the reach or control of Congress.' ' What, 
then, would Hamilton say if he were here to-day? 
It is a favorite canard to charge him with lacking 
trust in the people. At least, let it be admitted 
that he put his whole, great heart and soul into a 
Constitutional defense against the invasion of the 
rights of the people by the Legislature. Even when 
President Martin Van Buren was trying to do away 
with Presidential Electors, he had to admit that 
upon no point were the people more thoroughly 
united than upon the "propriety, not to say indis- 
pensable necessity, of taking the election of Presi- 
dent from the House of Representatives." Shall 
we readily yield to new proposals, constantly re- 



Iff Hamilton Mere J^ere ®o=®ap 315 

newed, which might easily throw every election of 
every President into the House of Representatives? 
Are there not some debits that might be even worse 
than this Electoral College system under which we 
have lived successfully for more than a century and 
a quarter? After all, are things so bad that they 
might not become worse? When once amended, 
the Federal Constitution stays amended for many 
a long day. Is it entirely obvious that the abolition 
of the Electoral College is a reform deserving such 
permanence? 

(3) A parenthetical consideration enters here. 
Is the discouragement of major political parties, 
and the substitution of " independent" candidates 
for high public responsibility, a useful service to 
the people? One can defend the necessity for 
political parties as an indispensable means to a 
responsive end in a representative democracy, 
without turning apologist for all the back-stage 
manipulation in the average National political 
convention where Presidents are nominated. The 
method of nomination is not germaine to the Con- 
stitutional question we are considering. Methods 
of nomination might well be purged and improved 
and popularized — perhaps by the uniform, direct 
election of party delegates therefor. If The Feder- 
alist said anything at all pertinent to this phase of 



316 M Hamilton JHere T&txt ®o=3Bap 

the case, a condemnatory warning might well be 
taken from these words 1 : "Nothing is more to be 
desired than that every practical obstacle shall be 
opposed to cabal, intrigue and corruption, these 
most deadly adversaries of republican Govern- 
ment." Political conventions that smack of cabal 
and intrigue and corruption, are deadly. There 
are conventions that go wrong just as there are 
primaries that are debauched. No mechanical 
device, incidental to Government by parties, will 
ever be infallible. But this collateral fact does not, 
in the slightest degree, disparage the fundamental 
axiom that public opinion cannot find organized 
expression except as major political parties provide 
organized opportunity to this essential end. Non- 
partisanism is a practical ideal in limited units. 
But in the nation-at-large, when 25,000,000 voters 
are groping for means to ordain responsible and 
consecutive and co-ordinated management in the 
business of National Government, the end of 
parties will be the beginning of chaos. Parties are 
an imperfect creation at best. But they are in- 
finitely superior to lack of all liaison whatsoever. 
You may as well talk of ' ' independent Captains' ' for 
each Company in a Regiment of Infantry — and 
then expect such an Army to function resultfully — 
1 No. 68. 



M Hamilton Were Ifyttt ®o=33ap 317 

as to talk of National Government without some 
semblance of a central thread of organized policy. 
Political parties are an extra-judicial National 
necessity in the American Republic. Anything 
that tears them down, in National affairs, is of far 
less practical utility to the popular welfare than are 
those efforts and undertakings that seek to make 
them definitely stronger and, therefore, definitely 
more responsible. They need cleansing from time 
to time — and the people have a habit, despite 
fancied barriers, of achieving this result. But their 
total elimination would be a tragedy. 1 Daniel 
Webster once said: " There has been, and always 
will be, two dominant parties in politics, and this is 
indirectly an advantage to the general interests of 

1 When the alignment of existing dominant parties ceases 
to permit effectual division upon major issues, it is time for 
the alignment to change ; but it is never time for some sort 
of a party alignment to disappear. Many thinkers believe 
the time is now here for just such a realignment. Mr. 
Frank Munsey told the American Bankers Association 
Convention, New York City, October, 1922, that the new 
alignment should be Liberal-Conservatives v. Radicals. Dr. 
Butler, President of Columbia University, declared in an 
address the same month, that the new alignment should put 
"constructive liberals" in one party and "destructive radi- 
cals" in the other. Whatever the alignment, one party 
should represent uncompromising loyalty to the Spirit of 
the Constitution — the party to which Hamilton would lend 
his talents, if he were here to-day. 



3i 8 M Hamilton Mere Ifatxt ©o=Bap 

the country/' Parties may change. One may 
absorb and succeed another. But in the long run, 
it is best, as Henry Clay once observed, if there are 
but two dominant parties — "one to watch the 
other." It is all very well for voters, as individuals, 
to be "independent" in their electoral judgments. 
An intelligent ballot must, of necessity, be a scruti- 
nizing ballot: in other words, it must always be 
"independent" to the extent of sustaining a party 
only so long as a party deserves to be sustained. 
But it is one thing for the voter to be "indepen- 
dent" of irrefragable party ties: and quite another 
thing for "independent" groups to supersede all 
parties and thus factionalize American elections 
to an extent which will defy all possibility of 
dominant electoral trends and concentrated re- 
sponsibility in Government. Even Washington 
and Hamilton, who originally cautioned the swad- 
dling Republic against political parties, ultimately 
found it necessary to utilize parties in order to 
crystallize public opinion on the outside of Govern- 
ment, and to get co-ordinated results on the inside 
of the Government. Indeed, Hamilton was the 
founder, the inspiration and the guiding genius 
of the first political party ever cohesively launched 
under the Constitution. Any basic change in 
political machinery would fly in the face of time 



M Hamilton Were l&txt ®o=®ap 319 

and experience and make dubious contribution to 
an era which is at best, turbulent, uncertain and in 
a state of flux. The chief and unanswerable indict- 
ment against the direct primary is its negation of 
party responsibility and its failure to make legiti- 
mate party organization articulate — weaknesses 
which must be cured if the primary itself, on the 
one hand, or the Government, on the other, is to 
be saved from disintegration. If the Electoral 
College, in any remote degree, helps postpone the 
hour when this country shall try to function 
through diversified and unrelated groups, instead 
of through one, strong, majority party, and one 
scarcely less strong, minority party, it justifies its 
existence tremendously. 

(4) The mere fact that the individual citizen 
votes for Mr. Harding's " Presidential Elector," 
instead of for Mr. Harding direct, does not mean 
that the citizen is shorn of authority or that his 
suffrage is hampered. The net result, so far as his 
ballot is concerned is identical in both cases. 
Therefore the pretended gain from a change in the 
system is wholly theoretical. Of course, it was 
originally intended to repose absolute control over 
the choice of President and Vice-President in a 
small body of citizens carefully selected for that 
purpose and free to exercise its own best judg- 



320 M Hamilton JHere l&txt tCo=2Sap 

ment. 1 But the character of thisbody of citizens,this 
Electoral College, has since changed. The Elector 
has become the mere registering agent for the man- 
date of his constituents, and the unbroken con- 
stancy with which he keeps the trust, is proof con- 
clusive that the mass electorate controls as effectu- 
ally through him as it would if he were not its 
faithful oracle. As long ago as 1825, Senator 
Benton, pioneer opponent of the Electoral College, 
had to admit that "in every case the Elector is an 
instrument bound to obey a particular impuls : on; 
and disobedience to which would be attended with 
infamy, and with every penalty which public 
indignation could inflict." Benton correctly de- 

1 " The tendency in this democratic age is to overlook the 
fact that the Fathers of the Constitution were not believers 
in the rule of the people, and it was not until after 1800 that 
manhood suffrage was adopted in any of the States." — The 
Electoral System in the U. S. y by J. Hampden Dougherty, I. 
The Fathers most certainly did not believe in the pure 
democracy of the commune. But they did believe in the 
final responsibility of a representative Government to the 
people governed, and they proved it in a multitude of ways. 
Let it not be forgotten that, at the time of the adoption of 
the Constitution, it was the most startlingly "progressive" 
piece of public work in the history of the world. That the 
machinery provided, through the Constitution, has permit- 
ted the broad evolution of Government in subsequent "pro- 
gressive " generations, is the best proof of their motives. They 
believed that a new citizenship must creep before it walks — 
and they provided the forms suited to both conditions. 



M Hamilton Mere Here {Eo=3Bap 321 

scribed the Elector as "an agent tied down to the 
execution of a precise trust." Suffice it, to prove 
the point, that no Elector has ever been guilty of 
violated trust since the advent of political divisions. 
The only scandals, involving Presidential counts, 
have arisen when Presidential elections have 
passed out of the Electoral College and into the 
Congress — as when Hamilton rallied the Federal- 
ists in 1800 to defeat Aaron Burr's intriguing con- 
spiracy to count Jefferson out of The White House 
— and when unproven stigma accused Henry Clay 
of trading votes to John Quincy Adams in 1825 
in return for a Cabinet portfolio — and when the 
Hays-Tilden contest of 1876 all but threatened 
the possibility of renewed civil war. It is not the 
Presidential Elector who has featured historical 
charges of broken faith. It is in Congress itself — 
when a majority of the States' votes fail any one 
candidate for President — that this menace lies, 
if it lies at all ; and the elimination of the Electoral 
College, as we have seen, would tend to throw more, 
rather than less, of these contests into the House 
of Representatives. Presidential Electors in no 
degree interfere with clear and undiluted registra- 
tion for the will of the people. There is no true 
question of popular power over The White House 
involved in their continued existence — except as 



322 3f Hamilton Mere 3£ere <Eo=Ba|> 

their disappearance would hazard this popular 
power. It is one of the strange paradoxes of time 
that, back in the days when Electors as originally 
conceived really did hamper mass articulation, 
Hamilton has testified that this part of the Con- 
stitution "is almost the only part of the system, 
of any consequence, which has escaped without 
severe censure, or which has received the slightest 
mark of approbation from its opponents," 1 and 
now, when Electors merely serve as recording 
agents for their sovereign constituents, we hear 
that the system must be changed for the sake of a 
more articulate democracy. 

(5) Still another| advantage claimed for the 
abolition of the Electoral College is the curious 
notion that there would be some sort of utility in 
permitting the choice of Presidents and Vice- 
Presidents of opposing parties. "Under present 
conditions," says one advocate, "it is an impossi- 
bility for any voter to vote for a candidate for 
President on one ticket and a candidate for Vice- 
President on another ticket. . . The voter 
should be allowed to vote for any person for either 
one of the offices. . . . Such right is, in fact, 
fundamental in a free country." 2 Nothing is 

1 The Federalist, No. 68. 

2 Norris interview, Chicago Tribune, January 14, 1922. 



M Hamilton Mere 3£ere Co=23ap 323 

fundamental in a free country, which is inimical 
to the best advantage of useful Government. The 
best welfare of the country can never be served by 
putting men of opposite beliefs at the head of the 
Government. Such a condition would seriously 
intensify the jolting uncertainty and restlessness 
when a mid-administration death requires the Vice- 
President to succeed to first Executive authority. 
We tasted that medicine when Andrew Johnson 
succeeded Abraham Lincoln. If the Captain and 
First Mate of any ship are not in harmony, results 
are likely to be rough on the passengers. As for 
the suggestion that our present inability to put 
hostile officers atop the bridge of the Ship of State, 
violates some " fundamental right" in this "free 
country," this is fallacy unless one is willing to 
admit that " fundamental rights" have been vio- 
lated for a century. Until 1804, & was possible for 
Presidents and Vice-Presidents to be of opposite 
faiths. But the Twelfth Amendment substantially 
put an end to that anomaly. Have we forgotten all 
our lessons? Must fingers be burned all over again? 
(6) Finally, there is admonition in the history 
of attempts to break down the Electoral College. 
They would not uniformly have failed but for excel- 
lent reasons which we may well respect. " Direct 
election of Presidents" is no new fetish, born of 



324 3f Hamilton Mere S?ere ^o=Bap 

modern radicalism. Senator Thomas H. Benton of 
Missouri initiated twenty years of labor in this 
cause as long ago as 1823. A Select Committee of 
the Senate recommended such a change in 1826, 
but failed to win a two-thirds Senate approval. 
The New York State Senate, dissatisfied with the 
election of President John Quincy Adams in 1825, 
when lack of an electoral majority threw the verdict 
into the House of Representatives, demanded a 
Constitutional Amendment "giving the choice of 
President and Vice-President to the people.' ' 
President Jackson, one of the ill-favored candidates 
in the 1825 disturbance, repeatedly reccmmended 
the change in his executive messages. Futile 
amendments were offered in the House by George 
R. Gilmer of Georgia in 1836, and in the Senate by 
William O. Allen of Ohio, in 1837. During debates 
in Congress on the Civil War Amendments, Sena- 
tor Charles Sumner renewed the fight Benton had 
begun four decades before. Senator Oliver P. 
Morton of Indiana made particularly valiant efforts 
in this direction in 1874 an d again in 1876. He 
declared that " experience, as well as reason, now 
suggests that the rubbish of the Electoral College 
be brushed away entirely." Senator Buckalew 
and Representative Maish, both of Pennsylvania, 
took up the fight where Morton laid it down, but to 



M Hamilton Were l&txz {Eo=ISai> 325 

no avail. The disputed Hays-Tilden count of 
1877 was followed by a considerable number of 
proposed Constitutional Amendments. Repre- 
sentative Southard of Ohio formally reported an 
Amendment from Committee in 1878. John G. 
Carlisle later championed the substantive features 
of the Maish and Southard plans. 

Thus it is seen that great men and great minds 
have attacked the Electoral College since the hour 
of its creation. Yet the College still stands. Mod- 
ern generations have had none of the intimate 
aggravations which attended presidential elections 
in 1800, 1824 and 1876. Hence the need today for 
change lacks much imminent plausibility which has 
been apparent upon previous futile occasions. If 
the change could not justify itself before, it cannot 
justify itself now. Though James Madison, in his 
old age, agreed that Presidential Electors should be 
abjured, the vitality of an institution which has 
survived 130 years of relentless attacks confirms 
the verdict of Hamilton who contemporaneously 
said: "I venture somewhat further, and do not 
hesitate to affirm, that if the manner of it be not 
perfect, it is at least excellent." ' 

Down through the years many disputed ques- 
tions of law have required and received clarification 

1 The Federalist, No. 68. 



326 3f Hamilton Mttt J^ere Co=®a|> 

in relation to the electoral count, but the Electoral 
College itself has survived all these processes. 
Literally years of congressional debate have cen- 
tered round the allocation of power and authority 
to pass upon disputed electoral votes. The argu- 
ment started in 1800 with disagreement between 
House and Senate in regard to their relative pre- 
rogatives; it reached one mile-stone in Rebellion 
Days when the famous "Twenty-second Joint 
Rule" gave either Legislative branch the right of 
rejecting electoral votes; it reached another mile- 
stone in 1877 when Congress reversed itself and 
required that electoral votes should be counted 
unless both branches rejected them; and it came 
down to what is probably definite and final con- 
clusion in the Act of February 3, 1887 which favors 
the latter rule. Through crisis after crisis — as 
spectacularly typified by the Electoral Commission 
Bill of 1877 which drew upon the Supreme Court 
for five umpires in the Hays-Tilden controversy — 
collateral means to every desired end have been 
found without disturbing the existence of the 
Presidential Elector himself or the bona fides of the 
Electoral College system. However much we 
epochal egotists of today may scorn the moss of 
historical experience, surely there is something to 
give us pause in this realization that thirteen 



M Hamilton Mere J^ere ®o=2Bap 327 

decades of our forebears, though pressed by elec- 
toral irritations from which we are now compara- 
tively free, have refused to substitute new stone 
in this particular corner of our Constitutional 
foundations. There have been severe differences 
of opinion whether Electors in the various States 
should be chosen at large 1 or instructed by Congres- 
sional Districts — -the latter system, finally attacked 
by President Benjamin Harrison in a presidential 
message, now being generally discarded. There 
have been long and earnest debates over many 
other phases of this machine for naming National 
Executives. As a result a century of precedent 
and admonition now serves to guide us in any 
repetition of previous presidential election crises. 
There must be profoundly good reason before the 
Nation may justify itself in throwing this accumu- 
lated enlightenment to the winds and embarking 
upon a totally new adventure. 

Undoubtedly there are things incidental to the 
presidential tenure that could be served by correc- 
tions which would not invade Constitutional funda- 
mentals. For instance, the " disability" of the 
President — such as to require Vice-Presidential 
succession — needs specific definition. Again, the 
interlude between quadrennial November elections 

1 By the so-called "general ticket" system. 



328 M Hamilton ©Here J^ere ®o=Bap 

and March inaugurations might easily number 
dangerous days for the Republic. x Neither of these 
twilight zones of uncertain power, should be per- 
mitted to exist. They make for nerveless authority 
at the National helm. There can be no question 
about The Federalist's advice upon this score, for it 
very definitely said: " A feeble Executive implies a 
feeble execution of the Government ; and a Govern- 
ment ill executed, whatever it may be in theory, 
must be, in practice, a bad Government." 2 But 
such corrections as these do not involve a basic 
Constitutional principle; they involve merely the 
mechanics in the development of the principle. 
The principle itself — the tenure and the basic 
method of filling the Presidency — deserve to remain 
constant, unless and until definite and practical 
advantage can be unanswerably demonstrated to 
recommend an alteration. 

In the matter of tenure, it should be noted that 
proposals intermittently suggest the substitution 

1 During just such an interlude in 191 3 retiring President 
Taft had to mark time in a grave Mexican crisis, in order to 
leave his successor with a free hand. And what a terrifically 
and menacingly delicate situation would have existed in the 
winter and early spring of 191 7, on the threshold of Ameri- 
can entry into World War, if President Wilson had not been 
his own successor ! 

2 No. 70 



M Hamilton Mere Ifytxt ®o=l3ap 329 

of a six for a four year Presidential term, with a 
restriction to one term of service. 1 Here, again, 
there can be no doubt of what Hamilton would say 
and do if he were counseled today. The doctrine 
of "re-eligibility" is strongly defended in The 
Federalist and the counter-doctrine of closely 
limited tenure is as vigorouly denied. ''This ex- 
clusion," it declared, "would have effects which 
would be for the most part rather pernicious than 
salutary. One ill effect of this exclusion would be a 
diminution of the inducements to good behaviour. 
. . . Another ill effect would be the temptation 
to sordid views, to peculation, and, in some in- 
stances, to usurpation. . . . That experience 
is the parent of wisdom is an adage the truth of 
which is recognized by the wisest as well as the 
simplest of mankind. What more desirable or 
more essential than this quality in the Government 
of Nations? Can it be wise to put this quality 
under the ban of the Constitution, and to declare 
that the moment it is acquired, its possessor shall 
be compelled to abandon the station in which it 
was acquired, and to which it is adapted? . . . 

1 The Democratic National Platform, adopted at Balti- 
more, July 2, 191 2, said: "We favor a single Presidential 
term, and to that end urge the adoption of an Amendment 
to the Constitution making the President of the United 
States ineligible for re-election." 



330 3ff Hamilton Were l&zvz ®o=©ap 

A fourth ill effect of the exclusion would be the 
banishing of men from stations in which, in certain 
emergencies of the State, their presence might be 
of the greatest moment to the public interest or 
safety. ... A fifth ill effect would be that it 
would operate as a Constitutional interdiction of 
stability in the administration." Hamilton argued 
against "necessitating a change of men" — against 
"disabling the people to continue in office men who 
had entitled themselves to approbation and con- 
fidence." Who shall say, today, that he w r as not 
wise in his generation? Who shall say that a tradi- 
tion and a habit against a prolonged Presidency is 
not better and safer than a Constitutional stricture 
which could not be changed in an emergency? 
The one is elastic under pressure of necessity ; 
the other is a self-made barrier which is as insur- 
mountable as, in some crises, it might be fatal. J 
Perhaps this general discussion of "the fountain 
head ' ' can be no better ended than with an observa- 
tion relative to the character which an incumbent 
himself should give to the Presidency. What The 
Federalist 2 had to say of the authority intended to 
inure to the station, modern necessities recom- 
mend to both the station and the man who fills it : 

1 The Greatest American, by Vandenberg, 169-170. 

2 No. 70. 



M Hamilton Were l&txt tEo=®ap 331 

"There is an idea, which is not without its advo- 
cates, that a vigorous Executive is inconsistent 
with the genius of republican Government. The 
enlightened well-wishers to this species of Govern- 
ment must at least hope that the supposition is 
destitute of foundation, since they can never admit 
its truth without at the same time admitting the 
condemnation of their own principles. Energy in 
the Executive is a leading character in the defini- 
tion of good Government. It is essential to the 
protection of the community against foreign 
attacks ; it is not less essential to the steady admin- 
istration of the Laws; to the protection of property 
against those irregular and high-handed combina- 
tions which sometimes interrupt the ordinary 
courses of justice; to the security of liberty against 
the enterprise and assaults of ambition, of faction, 
and of anarchy.' ' 



Hanbiflarfcs; 



"I have had an eye, my fellow citizens, to putting you 
upon your ^uard against all attempts, from whatever 

quarter, to influence your decision, in a matter of the utmost 
moment to your welfare, by any impressions other than 
those which may result from the evidence of truth." — The 
Federalist, No. i. 



Having completed a survey of structural funda- 
mentals, in relation to the letter and the Spirit of 

the Constitution, perhaps the Function of this 
inquiry should be considered wholly served. But 

there remain a few general themes so character- 
istically Hamiltonian, so definitely comprehended 
by The Federalist's purview, and so intimately 
related to the jeopardy of American institutions, 
that it would be an act of negligence to omit a 
final, generic interview with these oracles of yester- 
day while their recalled spirit lingers to instruct, to 
guide and to inspire. If Hamilton were here to- 
day, in something more tangible than the licensed 
imagination, his encyclopedic wisdom would be 

332 



ffl Hamilton Were Here ®o=®ap 333 

eagerly drafted in a multitude of consultations, 
just as it was when the first Congress called upon 
him to blaze the trails out of Constitutional per- 
plexities. The last Congress needs him no less 
than did the first. The country needs him now, 
as much as ever. Problems wear different guise. 
But in principle, they are akin. Modern times, of 
course, face situations that were remote even to 
the fertile imaginations of the Founders ; and these 
situations, by the same token, frequently require 
the development of new machinery. Hamilton, if 
here, would be the last man to hesitate in these 
developments. But we are entirely sure that in all 
of these developments he would insist that the new 
machinery should not desert the elemental truths 
of proven mechanics. No matter what the devel- 
opments and evolutions, behind everything, under- 
lying everything, permeating everything, must be 
the unshaken truths of proven Republican ele- 
mentals. The spirit and the purpose of the Con- 
stitution must be the dominating formula. 

All honorable men did not agree with Hamilton 
one hundred and forty years ago. All of them will 
not agree with him to-day. There can be honest 
differences of opinion. We make no pretense that 
Hamilton monopolizes verity. But it is dishonest 
and dishonorable — now, as then — either to deny 



334 3K Hamilton USere Ifatxt ©o=Bap 

him hearing, or to resort to unbridled and scurril- 
ous rejoinders when legitimate logic fails of breath. 
Hamilton was the soul of courageous fair-play. 
The same day that he sounded his clarion apos- 
trophe to liberty at New York's "Meeting In The 
Fields" — when the spell of his eloquence was driv- 
ing his fellow-patriots to the extremes of action — 
he dared to stand upon the steps of old Dr. Cooper's 
house and argue back an angry mob of maddened 
citizens intent upon wreaking vengeance on a sus- 
pected Tory scholar. His memory, and its admoni- 
tions, deserve fair-play in return; and the fairer 
and the more honest the country's consideration of 
him may be, the fairer and the more honest it will 
be to its own destiny. 

If Hamilton were here again in flesh and blood, 
he would, nevertheless, face defamation and con- 
tumely and misunderstanding — largely from quar- 
ters required to resort to anathema for want of an 
honest answer to his creeds and deeds. But he 
would be no stranger to such familiar, unclean 
strategy; nor would it change his course. Nothing 
that modern iconoclasts might say — probably are 
saying, even of this book — could probe greater 
depths of malignity than the attacks of Jefferson's 
subsidized editor in the old National Gazette — 
attacks utterly crushed by Hamilton's famous 



M Hamilton Were Here ®o=23ap 335 

letter to Washington — or the Congressional resolu- 
tions impugning his integrity — resolutions which 
he forced his discomfited enemies to bring to a vote 
of gloomy defeat. J. T. Callender, scandal-monger 
of the Revolutionary era, even likened him to 
Caligula and Alva. If Washington's exalted service 
to the Republic could all be forgotten, in a momen- 
tary burst of passion demanding his impeachment, 
incidental to the Jay Treaty with England, it is 
not surprising that the motives of Hamilton who, 
like Robert Morris repeatedly pledged his private 
resources to support the shattered public credit, 
should be condemned by incontinent and ungrateful 
critics who would themselves assay as nothing but 
alloy under similar acid test. But villification 
never altered the fixity of his program by the 
breadth of a hair; nor can it debauch the wisdom 
with which he would sustain America if he were 
here to-day. 

It has long been vogue among impatient "re- 
formers" — who know nothing, and care less, about 
the difference between a Representative Republic 
and graduations toward a pure democracy — to 
dismiss Hamilton as a reactionary, dismissal being 
safer than debate. But nothing that this spurious 
brand of "progressivism" might say — probably is 
saying, even of this book — could blur the historic 



336 M Hamilton itlrrc ji)txt Co=23ap 

fact that Hamilton was, in the true sense of the 
word, the greatest Progressive of his time. 

Was it not "progressive" to fight down the To- 
ries and the Bourbons who hated him and feared 
him more than any Other single figure in the Revo- 
lution? Was it not gloriously " progressive" to 

spurn the gold with which they tried to buy his 
deadly pen? Waa it not "progressive" to aehieve 

the Constitution, the most f« >rwanl-looking event 

in history since the birth of Jesus Christ? Was 

it " p rogressive* 1 to pioneer in pitiless publicity 

that the people might know the official intimacies 

of their public business?' Was it not "pTpgl 

to chart uni\ atioo with the avowed de- 

sire "to pL . in the hands ol every Amer- 

ican child?" 1 Was it not "pr< to demand 

the impartial administration of the Law, for rich 

and p< or alii. Wa I it m »t "pn the 

1 D '1 in all his effort itoi the old Continental 

.'.uul action, Hamill <vc its 

ami r I t" tin- public. 

IK Id 1 nd make his 

Speeches if 1 a wider audience. The time was 

rapidly approaching when the whole Government would be 

his "1 md the whole world his pit. 

2 This was 1. t interest in the New York \j 
lature. lie also initiate d the movement which produced 
the University of the State of New York, and he was one of 
the founders and incorporator- of Hamilton College. 



M Hamilton Were Here 3Co=3iap 337 

most progressive single act in American history — 
to evolve the Constitutional doctrine of liberal 
construction and implied powers, so that the Great 
Charter, though holding fast to fundamentals, did 
not become a strait-jacket and a garrotte? 1 Was 
it not " progressive'' to write down the first, com- 
plete exposition of Tariff Protection 2 — and yet to 
warn against the danger of permitting Protective 
Tariff duties to go too high? 3 Was it not " progres- 
sive" to oppose undue severities in the Alien and 
Sedition Act, in the Adams Administration, saying 
— " Let us not establish a tyranny; energy is a very 
different thing from violence"? Was it not " pro- 
gressive" to defend the unliquidated claims of 
Revolutionary heroes whom public selfishness and 
forgetfulness neglected? Was it not "progressive" 
to defend the freedom of the press in the greatest 
philippic of the age? 4 Was it not " progressive" to 

1 The result was a system which "guards equally against 
that extreme facility which would render the Constitution 
too mutable, and that extreme difficulty, which might 
perpetuate its discovered faults." — The Federalist, No. 43. 

2 Hamilton's "Report on Manufactures." 

3 The Federalist, No. 35. 

4 In the defense of Croswell, Hamilton spoke six hours — 
"his greatest forensic effort," says Kent — laying down the 
principle that ' ' the liberty of the press consists in the right 
to publish with impunity truth with good motives and for 
justifiable ends, whether it respects Government, magis- 

2a 



338 M Hamilton Mere l&zxt {Eo=©ap 

wage relentless war upon the sordid political cupid- 
ity of Aaron Burr, one of the first gangsters to 
organize money for the electoral control? Was it 
not "progressive" to serve mirific responsibilities 
so unselfishly — despite unlimited money-gaining 
opportunities — that when he died, his Estate con- 
sisted mainly of nothing but unsullied fame? 
Was it not "progressive" — in a sublimated sense — 
to die for Constitution and for Union? 

These are Hamiltonian ideals and mandates — 
yesterday, to-day, to-morrow. If they be not 
"progressive," God save America from all the fakes 
and shams and hypocricies that assume this name 
and then rape its virtues. In a final consulta- 
tion, therefore, of the land-marks of the Republic — 
erected on the highways of National history by 
Hamilton and The Federalist — let it be sensed that 

tracy, or individuals." Hamilton always believed in free 
expression of legitimate public opinion. His philosophy in 
relation to the press was liberty to print, then responsibility 
for the published product; liberty "before the fact," re- 
sponsibility "after the fact." He would be a modern foe 
to all censorship — including, undoubtedly, censorship of the 
modern motion picture which is kindred to the press as a 
mode of expression. It would not be the length but the 
direction of the step which he would fear. It is significant 
to note, in this connection, that in the first formidable test 
of mass opinion on this moot subject, a Massachusetts 
referendum rejected a motion picture censorship law, 
November, 1922, by an adverse vote of 545,919 to 207,476. 



M Hamilton Were l&txt ®o=3@ap 339 

the most progressive authorities, as well as the 
most faithful, are directing our considerations. 

It would be natural that Hamilton, if he were 
here to-day, should be particularly solicitous about 
the preservation of the public credit. This would 
be emphatically true if he could hear some of the 
wild-eyed economic theories constantly soliciting 
modern America to desert sound and proven fiscal 
bases, and experiment with " printing press money' ' 
which would invite the American dollar to com- 
pany with the Russian ruble and the German mark. 
When Hamilton was only twenty-three — contem- 
plating $160,000,000 of depreciated colonial bills 
in circulation, $40,000,000 of unliquidated public 
debt, and an unpaid Army with fast multiplying 
arrears — he wrote to Robert Morris and demon- 
strated that real money, money backed by intrinsic 
value, was the only salvation for the situation. 
Never did he retreat from these faiths in honest 
money. A few years later, The Federalist x declared : 
"The loss which America has sustained since the 
peace from the pestilent effects of paper money on 
the necessary confidence between man and man, 
on the necessary confidence in the public confi- 
dence, on the industry and morals of the people and 
on the character of republican Government, con- 

1 No. 44. 



340 M Hamilton Wttt Here ©o=2@ap 

stitutes an enormous debt against the States 
chargeable with this unadvised measure, which 
must long remain unsatisfied; or rather an accumu- 
lation of guilt, which can be expiated no otherwise 
than by a voluntary sacrifice on the altar of justice 
of the power which has been the instrument of it." ' 
11 Paper money," in the sense here intended, is 
money lacking an intrinsic equivalent of immutable 
value. It is the " paper money" which floods Eu- 
rope beneath an engulfing deluge scarcely less fatal 
than vast inundation by the seas. It is the " paper 
money" which would ruin Ametica, if Russian- 
esque colonizers could invade our sanity, or if 
socialistic theorists could involve us in exploded 
experiments, or if uninstructed economic adven- 
turers could lure us into the mad notion of issuing 
"money" against " public improvements" which 
may or may not liquidate themselves. 

It was a religion with Hamilton that unimpeach- 
able public credit was pre-requisite to any sem- 
blance of National honor. A people who repudiated 
their debts, or sought escape from them through 
the use of depreciated money, were no better, in his 

1 The " sacrifice of power" here referred to, was the Con- 
stitutional prohibition extended to bills of credit — "a 
prohibition which must give pleasure to every citizen, in 
proportion to his love of justice and his knowledge of the 
true springs of public prosperity." — The Federalist, No. 44. 



M Hamilton Here l&txt ®o=3Bap 341 

rigid estimates, than an individual who cheats his 
creditors. Consequently, his was frequently a 
lonesome voice in that expedient day when it was 
quite the habit to repudiate whatever it was in- 
convenient to redeem. r But at one time or another 
fighting the leadership of both Madison and Jeffer- 
son, he forced the par redemption of every penny 
of the Revolutionary debt, insisting that a promise 
to pay was sacred and that its repudiation could be 
excused by no exigent reasoning if the pledged 
word of the debtor-Nation was to stand clean before 
the world. It was his everlasting contention that 
no Nation could afford to compromise its debts, 
no matter what immediate relief might seem to 

1 The London Spectator, September 30, 1922, referring 
to the cancellation of Europe's World War debts to America, 
says: "In matters of debt, these people — the American 
anti-cancellationists — are sincere disciples of Alexander 
Hamilton, the foremost exponent of sound public finance in 
the history of the United States. Hamilton believed un- 
compromisingly in the payment, to the last dollar and cent, 
of obligations incurred in the public name. Anything 
savouring of repudiation, or of even unnecessary delay in 
payment, struck this eminent lawyer, Constitutionalist, and 
financier as full of public and private menace to the develop- 
ment of economic interests and of civilization. 'Be strin- 
gent in public expenditure, borrow only when you must, pay 
as quickly as you can — so you will be able to borrow again if 
in actual need' — such was the fiscal philosophy of Hamilton. 
And the American anti-cancellationists, whatever their 
shortcomings, are devoted Hamiltonians." 



342 3f Hamilton WLzvt l&txt ®o=©ap 

recommend an easier way. "Who would lend to a 
Government that prefaced its overtures for borrow- 
ing by an act which demonstrated that no reliance 
could be placed on the steadiness of its measures 
for paying," The Federalist 1 inquired. 2 The integ- 
rity of public credit, for Hamilton, was the practical 
measure of a Nation's honor, and its chance for a 
respected place in the evolution of prosperity. 
Does it require any stretch of the imagination to 
sense what his attitude would be toward World 
War debts, if he were here to-day? 3 

In the entire realm of Federal finance, Hamilton 

1 No. 30. 

2 Again suggestive of the constancy of economic truth, 
the reader is invited to compare this sentence with the 
almost identical message of Lloyd George to Russia at the 
Genoa Conference of 1922. 

3 Interesting evidence of a renaissance in Hamiltonism 
appeared in Mr. Herbert Houston's new magazine, Our 
World, in a series of 1922 articles by Arthur Bullard on 
"The Credit of the Nations." We quote the author's own 
synopsis, September issue: "In the first article of this 
series, Mr. Bullard argued that Credit is the foundation of 
our modern economic life and that to lose faith in the sol- 
vency of the Great States would be a disaster worse than war. 
In the second article he discussed how America has in 
the past met her war debts and how the financial genius 
of Alexander Hamilton saved this country, after the 
Revolution, from bankruptcy. In the concluding article, 
he argues that Hamilton's fundamental idea — that wealth 
is most rapidly created by the development of frontier lands 



3f Hamilton Mtxt l&tvz Co=3Bap 343 

would continue to plead for sheer honesty. In all 
relations involving material rights and obligations, 
he would continue to stand unflinchingly on the 
side of honor and probity. He would reject the 
cunning expedients of fraudulent statesmanship no 
quicker than the vaulting nonsense of socialistic 
and communistic deceits. " Reflections of this 
kind may have trifling weight with men who hope 
to see realized in America the halcyon scenes of the 
poetic or fabulous age ; but to those who believe we 
are likely to experience a common portion of the 
vicissitudes and calamities which have fallen to 
the lot of other Nations, they must appear en- 
titled to serious consideration." 1 He never ex- 
alted property rights above human rights; but he 
never permitted himself to be blinded by the ab- 
surd philosophy that the latter can be effectually 
served to the exclusion of the former. It was his 
hope that the Federalization of the American 
people would shield them from major dangers in 
all of these directions. " A rage for paper money, 
for an abolition of debts, for an equal division of 
property, or for any other wicked or improper 
project, will be less apt to pervade the whole body 

— contains a constructive suggestion to help us to-day in the 
handling of the Inter- Allied Debt." 
1 The Federalist, No. 30. 



344 3tt Hamilton JHere %ere ®o=3Bap 

of the Nation than a particular member of it; in 
the same proportion as such a malady is more likely 
to taint a particular county or district, than an 
entire State." 1 His recommendations, in kind, if 
he were here to-day would challenge all experiments 
upon public credulity, all tunnellings beneath the 
public credit, all deflections from sound political 
economy, and all expedients seeking compromise 
with honor and integrity. Men listened to him in 
the days of the foundation, with the result that the 
foundations were plumb and true. Men can ill- 
afford not to listen to him now. America set a 
precedent for herself and an example for the world 
when, in the midst of terrific economic pressure, she 
practised w r hat Hamilton preached, shouldered all 
of her fiscal burdens without a murmur or compro- 
mise, clung to honest money and the honest pay- 
ment of honest debts, abjured all fiscal vagaries 
and socialistic infatuations, and steered the straight 
course of honor and integrity and dependability 
which has led to a prestige and a credit that are 
supreme and unassailed throughout the world. 

In the assessment of taxes, Hamilton believed 
in tempering the burden, so far as possible, to the 
ability to pay. This axiom has lost none of its 
soundness with the passage of time. The Federal- 

1 The Federalist, No. 10. 



M Hamilton JHere J^ttt {Eo=21a|> 345 

ist 1 prescribed it as a " fixed point of policy in the 
National administration to go as far as may be 
practicable in making the luxury of the rich tribu- 
tary to the public treasury, in order to diminish 
the necessity of those impositions which might 
create dissatisfaction in the poorer and most nu- 
merous classes of society. Happy it is when the 
interest which the Government has in the preserva- 
tion of its powers, coincides with a proper distribu- 
tion of the public burdens, and tends to guard the 
least wealthy part of the community from op- 
pression/' It might be well for those who try to 
regard Hamilton as a votary of the money-power, 
to read those lines again. What convincing answer 
to petty slanders ! This man who did not hesitate 
honestly to proclaim the necessity, in any ordered 
society, of defending "the security of private 
rights" 2 was equally honest and plain-spoken in 
demanding that wealth should pay all its legiti- 
mate toll by way of tax-compensations to the 
Government which gave it security and the op- 
portunity to thrive. Such a position was — and is — 
invincible among men who think straight and are 
square with their Government and with society. 
Hamilton was relentless in his quest for admin- 

1 No. 36. 

2 The Federalist, No. 26. 



346 M Hamilton Were ©ere ©o=®ap 

istrative efficiency in public affairs. He abhorred 
waste and extravagance and political plunder- 
bunds. He cut to the bone in figuring official 
personnel and appropriations. To-day's ''rising 
tide of Government" — partially receding, but still 
staggering in back -wash — would have moved him 
into uncompromising opposition. 1 He believed 
that taxes should be held to the lowest levels con- 
sistent with progressive public service. But he 
insisted that when this point was established, there 
must be no questioning — not so much as the shadow 
of a doubt — the Federal levies. " A Nation cannot 
long exist without revenues," said The Federalist. 2 
"Destitute of this essential support, it must resign 
its independence, and sink into the degraded con- 
dition of a province." It was his idea, however, 
that "it is impracticable to raise any very consid- 
erable sums by direct taxation" ; and — in the light 
of present-day debates over methods for raising 
vast public revenues with least inequity and irrita- 
tion — it becomes highly pertinent to observe what 
he would say, by way of repetition, if he were here 
to-day. 3 

1 There were 438,000 Federal employees prior to 191 7. 
The War carried this total, exclusive of fighting men, to 
917,700. At last count, October, 1922, there were 560,800 
upon the rolls. 

2 No. 12. 3 The Federalist, No. 21. 



3ff Hamilton iilcre tytxt £o=Qap 347 

"Imposts, excises, and, in general, all duties upon 
articles of consumption, may be compared to a 
fluid, which will, in time, find its level with the 
means of paying them. The amount to be con- 
tributed by each citizen will in a degree be at his 
own option, and can be regulated by an attention to 
his resources. The rich may be extravagant, the 
poor can be frugal; and private oppression may 
always be avoided by a judicious selection of ob- 
jects proper for such impositions. If inequalities 
should arise in some States from duties on particu- 
lar objects, these will, in all probability, be counter- 
balanced by proportional inequalities in other 
States, from duties on other objects. In the course 
of time and things, an equilibrium, as far as it is 
attainable in so complicated a subject, will be 
established everywhere. Or, if inequalities should 
still exist, they would neither be so great in their 
degree, so uniform in their operation, nor so odious 
in their appearance, as those which would neces- 
sarily spring from quotas, upon any scale that can 
possibly be devised. 

'It is a signal advantage of taxes on articles of 
consumption, that they contain in their own nature 
a security against excess. They prescribe their 
own limit; which cannot be exceeded without de- 
feating the end proposed — that is, an extension of 



348 3f Hamilton JBJere l&zvz ®o=3@ap 

the revenue. When applied to this object, the 
saying is just as it is witty, that 'in political arith- 
metic, two and two do not make four.' If duties 
are too high, they lessen the consumption; the 
collection is eluded; and the product to the treas- 
ury is not so great as when they are confined within 
proper and moderate bounds. This forms a com- 
plete barrier against any material oppression of the 
citizens by taxes of this class, and is itself a natural 
limitation of the power of imposing them." 

These considerations might well be given the 
modern attention which their logic deserves. 
There never was and there never will be a sounder 
American economist than Alexander Hamilton. 
There is no field, other than economics, where he 
would be more useful if he were here to-day. 

Since modern economics substantially involve 
America's relationship with Europe, it is undoubt- 
edly proper to linger a moment, at this juncture, 
upon what Hamilton deemed appropriate liaison 
between the Old World and the New. " Peace and 
trade with all Nations," was his motto; "but be- 
yond our present engagements, political con- 
nections with none." It is inconceivable that a 
man who could think continentally as did Hamilton 
when planning to push our frontiers west to the 
Mississippi and south to the Gulf, would be a 



M Hamilton Mere Here tEo=©ap 349 

narrow- visioned provincial, with blinders at his 
eyes, in this present period of world-wide inter- 
national economic involvements. But it is equally 
inconceivable that the putative author of Washing- 
ton's first great Neutrality Proclamation in 1793, 
setting us aloof from the Franco-British War and 
fixing our permanent propriety as independent of 
foreign faction, would for one moment sanction 
any modern partnership between America and 
Europe- It is inconceivable that the warning 
against "entangling alliances" which Hamilton 
wrote into Washington's Farewell Address l would 

1 William Roscoe Thayer, in his George Washington, 
points out that this phrase " entangling alliances" does not 
appear in the Farewell Address at all. Here, however, are 
two literal quotations: " It is our true policy to steer clear 
of permanent alliances with any portion of the foreign 
world. . . . Taking care always to keep ourselves by 
suitable establishments on a respectable defensive posture, 
we may safely trust to temporary alliances for extraordinary 
emergencies." Thayer also says: "All Washington's 
arrangements at a given moment were directed at the needs 
and likelihood of the moment, and in 191 4 he would have 
planned as 191 4 demanded; he would have steered his ship 
by the wind that blew then and not by the wind that had 
blown and vanished one hundred and twenty years before." 
If this intimates that Washington was an opportunist, 
incapable of consistent fidelity to basic charts regardless of 
weather, it is borne out by no facts. " In 191 4," as in every 
moment of responsibility when he was at the head of the 
Republic, there is no question about what Washington 



350 M Hamilton Mere 3£ere ©o=2aap 

not be reiterated by him as a cardinal American 
principle, if he were here to-day. It was his passion 
to make America independent of Europe, and then 
to divorce European influences from all Western 
Hemisphere affairs. In the early " Continentalist," 
he pleaded the coming day when these latter Pan- 
American immunities should afford the New World 
untrammeled opportunities to live its own political 
life, unruffled by alien interferences. x The Feder- 
alist 2 renewed the creed : ' ' We may hope ere long 
to become the arbiter of Europe in America, and to 
be able to incline the balance of European com- 
petitions in this part of the world as our interest 
may dictate." As for the reciprocal elements of 
independence, this same Federalist sounded clar- 
ion call, not only to the young Republic, but to all 

would have done? He would have summoned the counelss 
of Alexander Hamilton, and these counsels would have 
taken their inspiration from the spirit of the Constitution, 
"in 1 9 14" or any other year. 

1 This was the first promulgation of the "Monroe Doc- 
trine," later to immortalize the name of a President who 
borrowed it from Hamiltonian philosophy. Says Oliver's 
Essay on American Union: "The spectacle of Monroe, 
the defeated but undiscouraged assailant of Hamilton's 
private honor and public policy, roaring most nobly to all 
the ages out of the stolen skin of 'The Little Lion,' is 
possibly the crowning triumph of a great idea." 

2 No. 11. 



M Hamilton Here ?#ere ®o=®ap 351 

generations that should inherit the benefits of 
unentangled freedom: "Let Americans disdain to 
be the instruments of European greatness! Let 
the thirteen States, bound together in a strict and 
indissoluble Union, concur in erecting one great 
American system, superior to the control of all 
trans-atlantic force or influence, and able to 
dictate the terms of the connection between the 
Old and the New World." 

One of the major reasons which The Federalist 
unremittingly urged for adequate military and 
naval defenses, was the desirabilty of possessing a 
National strength equal to these National ideals, 
to the end that our obvious power should cause our 
independence of foreign turmoil and our neutrality 
in the midst of it, to be acknowledged and, thus, 
to be unquestioned and pacifically respected. 
"The rights of neutrality will only be respected 
when they are defended by an adequate power. A 
Nation, despicable by its weakness, forfeits even 
the privilege of being neutral. . . . Our com- 
merce would be a prey to the wanton intermeddling 
of all Nations at war with each other; who, having 
nothing to fear from us, would with little scruple 
or remorse supply their wants by depredations on 
our property as often as it fell in their way." 1 

1 The Federalist, No. II. 



352 3ff Hamilton JHere ©ere ®o=Bap 

Some of these observations, let it be parentheti- 
cally said, sound as though written in the midst 
of our vain efforts to maintain early neutrality 
during the recent World War. We do not discuss 
the question whether this early neutrality was 
right: we recall merely that it was impossible — 
largely for the reason of an unpreparedness which 
The Federalist warned would make neutrality im- 
possible. "Should a war be the result of the pre- 
carious situation of European affairs, and all the 
unruly passions attending it be let loose on the 
ocean, our escape from insults and depredations, 
not only on that element, but every part of the 
other bordering on it, will be truly miraculous." 1 
That could have been said the day Austrian nobil- 
ity was assaulted at Sarajevo in 1914, as truthfully 
as in 1 787. "A cloud has been for some time hang- 
ing over the European world. If it should break 
forth into a storm, who can insure us that in its 
progress a part of its fury would not be spent upon 
us? No reasonable man would hastily pronounce 
that we are out of its reach." 2 A fact then; a 
fact in '14; a fact in 1923. Hamilton believed in 
looking these facts fearlessly in the face — a habit 
too little maintained, unfortunately, in subsequent 

1 The Federalist, No. 41. 

2 The Federalist, No. 34. 



M #amtUott $Here Jfytxt ®o=23ap 353 

and recent eras of uncertainty, expediency, and 
drift. Can there be any mistake in deductions 
assuming to conclude what he would say and do if 
he were here to-day? He believed in an intelli- 
gently self-reliant Americanism, as independent 
abroad as it is at home. He believed in scrupulous- 
ly denying ourselves to any entanglements not 
dictated by our own inclinations and welfare. In 
determining what our welfare is, he did not hesi- 
tate to consider situations in Europe and assess 
their possible relationship to our own posture. His 
allegiance stopped at the American shore-line ; but 
his vision roamed the world. He was not the 
astigmatized isolationist who fools himself into 
thinking that America is wholly immune to the 
effects of eruption, economic or political, in other 
continents. Neither was he the anaesthetized inter- 
nationalist who dreams himself into the notion 
that America must make common lot with all the 
uneasy, quarrelsome — and frequently imperialistic 
— powers on earth. His unremitting effort, if he 
were here to-day, would be to determine the extent 
to which American economic welfare is contingent 
upon Old World vicissitudes, and then to serve 
this economic need as a matter of enlightened 
National selfishness. But his unswerving counsels 

would compromise with no program seeking to tie 
23 



354 3M Hamilton Mere J^ere {Eo=30ap 

American destiny into the political fates of the Old 
World, or to make us party, directly or indirectly, 
to any compelling moral obligations that involve 
trans-oceanic partnerships. He would say again 
that, as Europe should keep out of America, so 
America should keep out of Europe unless Amer- 
icanism itself is to be served by voluntary excep- 
tions to this age-old rule. His "League of Na- 
tions" primarily would be Pan-American, not inter- 
continental. 

In so far as "isolation" implied American im- 
munity to foreign contagions, Hamilton was its 
devotee and advocate. He was everlastingly 
wedded to that idea that the indivisible fidelity of 
American citizens should inure exclusively to the 
land of the Stars and Stripes. There were no 
hyphens in his heart or soul. "We are laboring 
hard to establish in this country principles more 
and more National," he wrote, "and free from all 
foreign ingredients, so that we may be neither 
'Greeks nor Trojans,' but truly Americans." 1 
If he were here to-day, he would endorse, re-echo, 
and promote every doctrine of this character which 
found its most recent and dynamic exponent in the 
late lamented Theodore Roosevelt. 

Like Roosevelt, too, he would be a man of peace 
1 Letter to Rufus King, December 16, 1796. 



3f Hamilton Ifflere 3£ere ®o=2Sap 355 

as well as war. His committal to neutrality in the 
Franco-British ruction proved this inclination. 
He believed in the pacific composition of disputes. 
His recommendation of a Treaty Mission to Eng- 
land — at the very moment when he was denouncing 
Britain's outrageous aggressions on our commerce, 
and was demanding that the country be put under 
preparation for effective war — demonstrated his 
pacific preferences. Keenly he realized the awful 
economic burden which war flung upon the backs 
of present and future generations. It sounds 
almost like an argument at the Washington Con- 
ference of 1921-22 when The Federalist 1 points 
out: "In the kingdom of Great Britain, where all 
the ostentatious apparatus of monarchy is to be 
provided for, not above a fifteenth part of the 
annual income of the Nation is appropriated to the 
civil expenses; the other fourteen-fifteenths are 
absorbed in the payment of the interest of debts 
contracted for carrying on the wars in which that 
country has been engaged, and in the maintenance 
of fleets and armies." 2 There can be no doubt that 

1 No. 34. 

2 The Literary Digest, November 12, 1921, was pointing 
out that in the 1920 expenditures of the United States, 92.6 
per cent — or approximately this same fourteen-fifteenths 
to which The Federalist referred — was paying for past wars 
or wars to come. 



356 M Hamilton Were Here tE;o=3Bap 

a statesman and economist who thought of war in 
these terms would eagerly embrace America's 
modern Treaty program for a "Naval Holiday/ ' 
for arbitral engagements in which we yield no 
essential self-determination, and for every possible 
legitimate release from the thraldom of a voracious 
Mars. 

But if Hamilton were here to-day, he would urge, 
with all the earnestness at his command, that 
America take nothing for granted in these re- 
spects; in other words, that she constantly main- 
tain herself on a preparedness basis of adequate 
National defense — adequate, that is, in ratio, re- 
duced or otherwise, with the armaments of other 
powers. Next to its persistent admonitions against 
the danger of multi-phased faction, The Federalist 
had more to say of menace on this score of idealistic 
and impractical pacifism than of any other single 
subject. "Let us recollect that peace or war will 
not always be left to our own option ; that, however 
moderate or unambitious we may be, we cannot 
count upon the moderation, we cannot hope to 
extinguish the ambitions of others. . . . To 
judge from the history of mankind, we shall be 
compelled to conclude that the fiery and destruc- 
tive passions of war reign in the human breast with 
much more powerful sway than the mild and be- 



3lf Hamilton lilere ii.)crc £o=Dap 357 

neficent sentiments of peace; and that to model our 
political systems upon speculations of lasting tran- 
quillity is to calculate on the weaker springs of the 
human character." ■ How bitterly true we found 
all that to be, in the wake of the Lusitania's de- 
struction' 'If a Federal Constitution could chain 
the ambition Ot set bounds to the exertions of all 
other Nations, then indeed might it prudently 
chain the discretion of its own Government, and 
set bounds to the exertions for its own safety. . . . 
The means of security can only be regulated by the 
means and the danger of attack." In other words, 
we must avoid the menace of unshared idealism — 
"the paradox of perpetual peace. ,,J 'The steady 

nations of war against a regular and disciplined 
Army can only successfully be conducted by a force 
of the same kind." 3 We learned that lesson all 
over again within the last bloody decade. God 
only knows how many thousand men we sacrificed 
to the murderous notion that a good soldier needs 
nothing more than a willing heart! This theory of 

ing American defense upon the untrained fideli- 
of u a million men Springing to anus over- 
night" is the treachery of nonsense. "The facts 
which, from our own experience, forbid a reliance 

1 / UraHst, X". .^4. 

/ N Ibid. No j.s- 



358 3f Hamilton JHere 3&ere ^o=J9ap 

of this kind, are too recent to permit us to be the 
dupes of such a suggestion." ■ Adequate National 
defense, legitimately proportioned to the defenses 
of other world powers, continues to be a necessity 
which Hamilton would preach — to put and keep 
the United States "in such a situation as, instead 
of inviting war, will tend to repress and discourage 
it." J Then will foreign powers "be much more dis- 
posed to cultivate our friendship than to provoke 

our resentment ,,J and, let it be added, much more 

disposed to follow us in concerts that seek world- 
wide limitations upon these armaments which, 
otherwise, we are in position dominantly to use 

against them. 4 

In all things, if Hamilton were here to-day, he 
would urge upon his com] >at riots, whether in or 

1 The Federalist, No. 25, 

2 Ibid., No. 4. 'Ibid.. No. 4. 

4 China, tot example, would have been a pathetically 

impotent host, if attempting to sponsor an international 
Conference to Limit Armaments. The Federalist, No. 3, 
uses the following example. " In the year 1685, the State of 
Genoa having offended Louis XIV, endeavored to appease 
him. He demanded that they should send their Doge, or 
chief magistrate, accompanied by four of their Senators, to 
France, to ask his pardon and receive his terms. They were 
obliged to submit to it for the sake of peace. Would he on 
any occasion either have demanded or have received the 
like humiliation from Spain, or Britain, or any other power- 
ful Nation?" 



3ff Hamilton Mere J&tvt tEo=Bap 359 

out of public office, that they take their public 
obligations seriously, and realize that they are the 
custodians of a priceless trust — the boon of ordered 
liberty. Nothing would more sharply challenge 
his wrath than the contemplation of citizens who 
neglect to vote, or public servants who stoop to 
venal gains. The two are in direct conspiracy 
because the latter control elections when the former 
forget that the ballot is a responsibility as well as a 
privilege. We have entirely too many "good 
citizens" who cherish the narrow notion that the 
goodness or the badness of citizenship is determined 
by the two sides of jail doors; too many more who 
look upon election morning as a dreadful nuisance 
— a useless intrusion upon their divine right to 
concentrate uninterrupted attention upon their 
acquisition of gold ; too many more who are noisy 
fire-side critics of the "politics" which they neglect 
to help purge. By the same token, we have en- 
tirely too many public servants who are parasites, 
if nothing worse. 

Hamilton gave himself wholly and uncondi- 
tionally to his country. Not even his bitterest 
biographer would dare deny his scrupulous integ- 
rity in these respects. 1 He believed in taking 

1 In the unsavory Reynolds incident, he even chose to lay 
bare the full detail of an early mesalliance, at the expense of 



360 3f Hamilton Wzvt l&txt ®o=23ap 

Americanism seriously ; not as a sort of bi-product 
to business and society. To this end he set an 
illustrious example. ' ' I believe it may be laid down 
as a general rule," said The Federalist , * "that the 
people's confidence in and obedience to a Govern- 
ment will commonly be proportioned to the good- 
ness or badness of its administration/ ' But this 
is a two-edged sword. The " goodness or badness" 
of administration, in turn, is commonly to be pro- 
portioned to the vigilance and intelligent activity 
of an informed electorate. It is an endless cycle. 
The citizen is no less required to be faithful to his 
trust — a very specific and fundamental trust in a 
Government which the people absolutely control — 
than is the official whom his ballot commissions to 
a public task. The recreance of the one is no more 
palatable than the malfeasance of the other. 2 The 

excruciating personal humiliation, rather than permit 
his disingenuous enemies treacherously to pretend that 
payments to Reynolds involved his prior exploitation of a 
public trust. Indeed, the Reynolds woman created the 
occasion for as perfect a display of high moral courage, by 
Hamilton, as any history records. 

1 No. 27. 

2 From Jefferson City, Missouri, July 15, 1922, was re- 
ported a proposal by Judge W. T. Johnson of Kansas City, 
delegate to the Missouri Constitutional Convention, making 
it a misdemeanor, punishable by a fine or jail sentence, for 
failure to vote. "The number of indifferent persons who 
refuse to vote is growing constantly," said Judge Johnson. 



M Hamilton Mere J^ere ®o=®ap 361 

occasional infidelity or ineptitude of the official, 
however, has finally made ''politics" so much of a 
hissing and a scandal that the typical citizen all too 
frequently looks upon it as a thing to be shunned 
as though it were a plague. 

This situation must change. If the only method 
through which a Representative Government can 
function, is "politics," then "politics" is the most 
sacredly honorable of all civil activities. When the 
citizen places higher value on his suffrage, the 
official is likely to accept heavier responsibility 
under his trust. The endless cycle again ! "It may 
be urged," said a recent writer, "that the Republic 
has not worked perfectly. The answer is that it is 
not the fault of the form of Government, but of its 
imperfect application. It has provided by far the 
best Government of any form that has ever been 
devised. Problems in mathematics are not always 
worked correctly, but it is not the fault of the 
digits." 1 These imperfections lie at the door of 
citizen and public servant alike. Neither can 
point to the other and say : " I am holier than thou." 
Nor can the earnest, patriotic zeals of millions of 

"I think voting should be made compulsory. Some per- 
sons say voting is a right. I believe it is a duty." Belgium 
has had a compulsory voting law for many years. 
1 Back to the Republic, by Harry F. Atwood, 49. 



362 M Hamilton Mere 3£ere ®o=3Ba|> 

affirmatively good citizens, and the high-purposed, 
conscientious service of thousands of honest offi- 
cials, save us from the inertia flung upon the coun- 
try as a whole by the torpor of those minorities 
which foul their inheritance. 

These imperfections are not the fault of "poli- 
tics,' but of the way that "politics" are often 
ravished. It is not new standards that we need in 
these respects. It is merely an understanding 
return to old standards — such standards as found 
supreme apostrophe in The Federalist, and unim- 
peachable expression in the career of Alexander 
Hamilton. They left the landmarks. But there 
are none so blind as those who refuse to see. A 
citizenship healthily alert, a public service hon- 
estly and wisely administered, the Constitution 
faithfully preserved — this trinity is invincible. 
"Look unto the rock whence ye were hewn, and 
unto the hole of the pit whence ye were digged !" 



Professor Albert Bushnell Hart of Harvard says 
that "we have been fed up on our ancestors. . . . 
We are all getting a little tired of these panegyrics 
and this indiscriminate praise of everybody born 
before the year 1 800. As to the men in the Revolu- 
tion, there has grown up hero worship and almost 



M Hamilton Were Here ®o=©ap 363 

a process of deification." 1 From this depreciating 
viewpoint perhaps it has been a tiresome futility 
to examine The Federalist and to discuss what 
Hamilton would say and do if he were here to-day. 
But we have injected the latter only to personify 
the former. It is easier to sense the man than his 
work. But his work is paramount and secure 
against disparagements. 

Hamilton was not deity. He was a thoroughly 
human individual with perfectly human weaknesses. 
But among his weaknesses was never numbered a 
moment's desertion of the welfare of the Nation 
or the integrity of the Constitution. These he 
served with perfect faith and masterful achieve- 
ment. If America ever tires of such inspiration, 
it will have lost its soul. We have none too much 
spirituality, in this materialistic age, at best. 

Instead of being surfeited with these " panegy- 
rics," it would be a far more accurate assessment 
to say that modern generations have found little 
time and less inclination to linger amid the admoni- 
tions of history; and, instead of encouraging this 
apostasy, the greater service, in an era of flux and 
tempest, would seem to lie in respectful effort to 
recall the wisdom which made possible the Great 
Experiment whose blessings are our inheritance. 

1 Editorial, New York Times, October 24, 1922. 



364 M Hamilton iKere ?£ere <Eo=33ap 

When the life of "the man of the most brilliant 
mind whom we have ever developed in this coun- 
try' ' — Theodore Roosevelt's estimate of Hamilton 1 
— palls upon our interest, we are threatened with 
fatty degeneration of the heart. When the Consti- 
tution becomes old-fashioned and obsolete, the 
Republic will enter upon dangerous days. "It is 
not a new observation that the people of any 
country, if, like the Americans, intelligent and 
well-informed, seldom adopt and steadily persevere 
formany years in an erroneous opinion respecting 
their interests." 2 Thirteen deeades of Americans 
have found, despite incidental difficulty, that the 
letter and the Spirit o£ the Constitution are indis- 
pensable to their ordered, common weal. We are 
flatulent egotists indeed —inflated with that fatal 
pride which goeth before a fall — if there is nothing 
in these throbbing records worthy of study and of 
emulation. 

What Hamilton would say and do, if he were here 
to-day, is not the measure of infallibility. But 
those Americans who would abide his counsels, 
may be sure of their honor, their Republican fideli- 
ties, and their legacy of unimpaired Constitutional 
advantage to posterity. The Federalist is not sacro- 

1 Roosevelt's Letters to His Children, 103. 

2 The Federalist, No. 3. 



M Hamilton (Here l&txt {Eo=23ap 365 

sanct. But its interpretation of America's Great 
Charter has yet to be improved upon by the phil- 
osophers and statesmen of the subsequent years. 
Least of all is it to be improved by the intemperate 
doctrinaire who screams destruction in the name of 
"progress/' or the cunning Jacobin who pleads for 
"the people" and plots his own aggrandizement at 
their expense, or the imported heretic who wants 
to take the White and the Blue from the Republic's 
banner and leave the sinister Red. 

These are the landmarks from which we depart 
at our peril. Their inscriptions encompass the sum 
of basic human rights. To borrow from Dr. John- 
son, latter-day "reforms" are at best but meteors 
while Hamilton and The Federalist are fixed stars. 
Government of the PEOPLE, by the PEOPLE, and 
for the PEOPLE, means THE PEOPLE THEM- 
SELVES — all of them — not a class or group or fac- 
tion or camorra. It means REPRESENTATIVE 
DEMOCRACY, in the spirit of the Constitution. 
It does not mean dominion by wealth, on the one 
hand, or tyranny by a mob, on the other. It does 
not mean oligarchies of avarice, nor does it mean the 
crimson autocracy of demagogues. It does not 
mean Government by profiteering Bourbons, nor 
does it mean Government by exploiteering Bolshe- 
viks. It means evolution, not revolution. It 



366 3f Hamilton Were l&tit ®o=3Bap 

means popular control through the agencies which 
guarantee sane, sure, deliberate expression of popu- 
lar judgment. It means Government by LAW and 
in ORDER, not Government by PASSION and 
in HASTE. It means Government under the 
CONSTITUTION, the best friend the PEOPLE 
ever had. 

If Hamilton were here to-day, he would conclude 
as he did when the last word of The Federalist 1 
was subscribed: 

"Every man is bound to answer these questions 
to himself, according to the best of his conscience 
and understanding, and to act agreeably to the 
genuine and sober dictates of his judgment. This 
is a duty from which nothing can give him a dispen- 
sation. 'Tis one that he is called upon, nay, con- 
strained by all the obligations that form the bands 
of society, to discharge sincerely and honestly. No 
partial motive, no particular interest, no pride of 
opinion, no temporary passion or prejudice, will 
justify to himself, to his country, or to his posterity, 
an improper election of the part he is to act." 

1 No. 85. 



Ji Selection from the 
Catalogue of 

G. P. PUTNAM'S SONS 



Complete Catalogues sent 
on application 



The Greatest American 

Alexander Hamilton 

An historical analysis of his life and works, together 
with a symposium of opinions by distinguished 

Americans. 

By Arthur Hendrick Vandenberg 

Foreword by 

President Warren G. Harding 

"A fascinating book." Brooklyn Eagle. 

"Belongs in every well-rounded library of American states- 
men." San Francisco Chronicle. 

"The author performs a great service by so dynamically and 
sympathetically reviewing the career of one of our greatest and 
most neglected statesmen." Indianapolis News. 

"Mr. Vandenberg is a trained and highly successful journal- 
ist who reveals his talents by the rare facility with which non- 
essentials to a proper estimate of Hamilton's greatness are 
dismissed and emphasis laid upon those activities and incidents 
which made Hamilton's life unique and exceptional." Man- 
chester Union. 

"Few if any will read this biography without a stimulation 
of interest in America's history as a whole and a bulwarking of 
faith in the Nation which the labors of Hamilton and his gener- 
ation wrought." Grand Rapids Press. 

350 Pages, with Portrait and Illustrations 



New York G. P. Putnam's Sons London 



Alexander Hamilton 

An Essay on American Union 

By 

Frederick Scott Oliver 

Author of "Ordeal by Battle" 

Portrait and Map. Large Octavo 
500 Pages 

I have known nearly all the marked 
men of my time, but have never known 
one equal to Hamilton." — Tallcyrard. 

"Hamilton must be classed among the 
men who have best known the vital 
principles and fundamental conditions of 
government. There is not in the Con- 
stitution of the L nited States an element 
of order, strength, or durability which 
he did not powerfully contribute to 
introduce into it." — Guizot. 



G. P. Putnam's Sons 

New York London 



„oosKTY OF'- _ w 
P 'ly UBRABV 

DAVID 0-W>c^ 

REX BU^«0 83460-0405 



tJO 



ARY 
a ID 83460-0405 



if Hamilton *. 

American f>»" •'* •ppb»d| 

. ■l<ni pn4>l« i 

\rthur II .Arthur 

lllllllllllllllllll 






W'-.v.-^-'--'-'.-